'Totally without merit': the Court of Appeal's view

Predeterminiation iStock 000016468646Small 146x219The Court of Appeal has ruled recently on the meaning of 'totally without merit'. Polly Reynolds reports.

In June 2014, the Court of Appeal ruled in the case of R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091.

The Court, considering the meaning of totally without merit (TWM), held that "in this context, TWM means no more and no less than 'bound to fail'".

Under CPR 54.12(7), when an application has been considered without a hearing, that is, on papers alone, and the judge refuses permission to proceed on the basis that the application is TWM, the claimant's only remedy is by way of an application to the Court of Appeal. The Court of Appeal then decides whether, on the basis of the papers alone, the claimant should have permission to appeal or apply for judicial review.

Facts

In brief the facts of the case were as follows:

  • In 2002, Jamaican born Pamela Grace, entered the country at the age of approximately 43 on a temporary basis. She then remained in the country without leave to do so until 2012 when she applied for permanent leave to remain.
  • Her application was considered by the Secretary of State who refused the application with no right of appeal. Ms Grace then issued a claim form and the application was considered by Kenneth Parker J who, after considering the papers, refused permission for Ms Grace to apply for judicial review. Along with his reasons Kenneth Parker J stated in his judgement, "Case is considered to be totally without merit".
  • Subsequently, Ms Grace applied to the Court of Appeal for permission to appeal and requested clarification by the Court on the 'TWM test'. When her application was considered by Longmore LJ however, he granted permission only for the court to clarify the TWM test.

Background

The TWM test originated in civil restraint orders before spreading through a number of cases. The aim of the test was to relieve the strain of applicants bringing abusive or hopeless claims on the court system.

As a result of later CPR amendments, the test now allows a judge who has refused permission to appeal on paper, to prevent future applications and renewal to an oral hearing for any claimant regardless of whether they have a history of abusive claims.

Judgment

In his majority judgment Maurice Kay LJ set out clearly what he held the purpose of CPR 54.12(7) and the TWM test to be:

"It is not simply the prevention of repetitive applications or the control of abusive or vexatious litigants. It is to confront the fact, for such it is, that the exponential growth in judicial review applications in recent years has given rise to a significant number of hopeless applications which cause trouble to public authorities, who have to acknowledge service and file written grounds of resistance prior to the first judicial consideration of the application, and place an unjustified burden on the resources of the Administrative Court and the Upper Tribunal."

It was held that Ms Grace's case was bound to fail and the appeal was dismissed.

Polly Reynolds is a senior associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5276 or This email address is being protected from spambots. You need JavaScript enabled to view it..