Drawing on examples from recent judicial review cases, Research Fellow Lee Marsons explores how an excessively purist approach to procedure risks undermining the rule of law, access to justice, and the accountability of public bodies.

The approach of the courts to deciding judicial review cases is a matter of intense public debate, which attracts competing perspectives from commentators, researchers, parliamentarians and think-tanks. Recently, a focus has been on whether judges have softened their approach to deciding cases against the government. This debate centres around whether the outcomes of judicial review cases are becoming more government friendly, particularly on human rights.  

It follows government initiatives such as the Independent Review of Administrative Law, the Independent Human Rights Act Review and the Bill of Rights Bill. Each was established against a background context of government concern about judicial intervention into policy. PLP’s own research has questioned whether this concern is empirically warranted, but the judicial power debate is central to modern public law and is important.  

The risk is that otherwise strong claims for judicial review could be dismissed for procedural breaches unrelated to the strength of the claim

A connected issue about which there has been less, though growing, debate, is the attitude of judges towards judicial review procedure and whether this has become less pragmatic and flexible and more rigid and formalist. My article in Public Law Crossing the t’s and dotting the i’s: The turn to procedural rigour in judicial review, looks at how, if taken too far, an excessively purist attitude to judicial review procedure could undermine the rule of law, access to justice, and the accountability of public authorities.  

The phrase “procedural rigour” comes from Lord Justice Singh in the 2018 case R (Talpada) v Secretary of State for the Home Department at para. 67, where Singh LJ emphasised that public law litigation must be carried out with an “appropriate degree of procedural rigour.”  

The article argues that this “turn to procedural rigour” involves an attitudinal and rhetorical shift in senior judges away from procedural flexibility towards procedural formalism, manifesting as a public focus on the importance of parties adhering to existing procedural requirements and the creation of new procedural rules.  

Procedural formalities serve important functions, like offering structure, certainty, and predictability to litigating parties. Courts would not work without them. But the risk is that otherwise strong claims for judicial review dealing with significant illegality, with implications for many individuals beyond the claimant, could be dismissed for procedural breaches unrelated to the strength of the claim and which cause negligible, if any, disadvantage to public authorities. Courts should adopt a pragmatic approach aligned with the underlying objectives of procedural rules.

In many instances the more likely reason for greater procedural rigour is judicial concern about effective time management and efficiency

The turn to procedural rigour has multiple aspects, each with different underlying reasons. There can be no simple conclusion that procedural tightening is happening because judges are becoming more government friendly. In many instances – such as new page limits on written submissions – the more likely reason is judicial concern about effective time management and efficiency. The turn to procedural rigour may be largely pragmatic rather than ideological.  

Some of the patterns highlighted in the article include:  

A strict approach to the rules on serving claim forms to public bodies. One of the most concerning aspects is an increasingly strict approach towards errors occurring during the serving of judicial review claim forms on public bodies. These errors can be as simple and innocuous as sending the form to an incorrect email address, even when the form is still in fact received. For example, in R (Good Law Project) v Secretary of State for Health and Pharmaceuticals Direct, the Good Law Project did not serve a valid sealed claim form but had served an unsealed form to an alternative email address, through which they had previous contact with the defendant. The defendant even acknowledged the claim form.  

Despite this, the Court of Appeal declined to validate the service of the form, even though all that would have happened is that the email would be forwarded to the person that it had already been sent to. The result was that this claim could not be pursued at all. This case underlines the problem with an excessively purist approach to procedure. It can undermine and, indeed, actively deny important competing objectives, such as the rule of law, access to justice, and accountability. 

A narrowing approach to standing in cases involving campaign organisations. One aspect that was mentioned in PLP’s annual conference in October 2022, is a growing judicial scepticism towards the standing of campaign organisations to pursue judicial review claims in the public interest. Standing is the procedural recognition by the court that a person or organisation has “sufficient interest” to bring a case (section 31(2A)(3), Senior Courts Act 1981).  

Pragmatism, flexibility and balance are crucial, and excessive formalism should be avoided.  

This reflects the recommendation of the Independent Review of Administrative Law, which commented at 4.99 of its report that: “we would…encourage the courts to address expressly the issue of standing in proceedings that are brought before them, regardless of whether that issue is raised by the parties.” This advice is now being taken, with the risk that important cases pursued by campaign organisations, which individual claimants may not wish to or be in a position to bring, will not be heard by the courts.  

A critique of “rolling” judicial review. “Rolling” judicial review is when lawyers arguing a case change their arguments during the hearing as circumstances change. This might be triggered by a change of strategy, the disclosure of new information by the government which makes an additional argument feasible, or an adjustment to the initial decision which is under challenge. Increasingly the approach of the courts is that substantially new arguments should normally be pursued via a separate claim for judicial review. 

This sometimes makes sense – it is illogical to unduly delay existing proceedings, which might have been resolved quickly, with new complex arguments. Equally, if the new argument is connected to existing ones or only arose because of failures by the defendant, imposing additional costs and burdens on the claimant by having to go through the permission stage all over again is less easy to justify. Pragmatism, flexibility and balance are crucial, and excessive formalism should be avoided.  

Strong regulation of the “urgents” procedure. Another aspect is increasingly sharp and public judicial criticism of claimant lawyers who, in the view of the court, misuse the “urgents” procedure. This is when claimant lawyers apply to a judge without notice to the government to obtain emergency relief in compelling circumstances, such as when the claimant is experiencing an immediate risk to life or health. This criticism has included the use of Hamid hearings, which are used to decide whether to refer a lawyer to a regulatory body for misconduct proceedings. 

Taken individually, there are good reasons for these changes. But there remains the real risk that too purist an approach will undermine access to justice, the rule of law, and public accountability

New page limits on written submissions. In May 2021, new Practice Direction 54A (PD54A) came into force, following calls from the senior judiciary for page limits on written arguments in judicial review. PD54A 4.2(3), for example, requires that Statements of Facts and Grounds not exceed 40 pages; 6.2(4) requires that Summary Grounds should not exceed 30 pages; 9.1(2) requires that Detailed Grounds should not exceed 40 pages; and 14.3 requires that Skeleton Arguments should not exceed 25 pages. If a party exceeds these page limits, the court can disallow a party’s costs for any work done exceeding the page limits.  

Taken individually, and even collectively, there are good reasons for these changes. Predictability, efficiency and certainty are important in litigation for claimants, public bodies, judges, and wider society. Nevertheless, there remains the real risk that too purist or formalist an approach to judicial review procedure will undermine access to justice, the rule of law, and public accountability. 

Are the courts getting stricter with judicial review procedure? By their own admission, it looks like it. An important case to follow in 2023 will be the Good Law Project’s appeal to the Supreme Court on whether the Court of Appeal’s refusal to validate their claim form was correct. Hopefully in this instance, pragmatism will win over formalism.   

Given its importance, PLP will continue to monitor the approach of the courts to procedural rigour. 

Lee will be holding a roundtable in early 2023 to explore the issue in more detail, with a view to carrying out fuller empirical research on the issue. Get in touch with Lee for more information.