Keeping your head out of the sand?

A High Court judge has set out which a public authority ought to take, if it cannot, for financial reasons, defend its own decision in court in judicial review proceedings. David Hart QC analyses the ruling.

Out of what some may think to be an everyday spat between the Co-Op (existing supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J in Midcounties Co-Operative Ltd v Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.

A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.

The detail of this judicial review does not matter. But it is a bit depressing that the third shot by the local planning officers at saying why they supported the out-of-town proposal from the interested party still did not properly grapple with the obvious question – but what effect will this have on the town centre?

Singh J was utterly unpersuaded by the latest attempt to support the out-of-towner, because it did not engage with that question. So he quashed the decision to grant permission to that supermarket, again. But the wider interest of the case arises out of a postscript to his judgment.

The Council did not participate in the court proceedings, but wrote a letter to the court saying that it opposed the Co-Op’s challenge, and left it to the rival supermarket to develop the grounds of resistance, because of costs constraints.

There are all sorts of reasons why this is unwise presentationally, the most obvious of which are (i) if you really think you are going to win, you will get your costs back, so why be so defensive? (ii) leaving it up to the rival supermarket to justify the rationality of your own decision does rather say to the judge that you do not really believe in your own case, and (iii) most importantly in the context of this case, it does rather suggest that you are in the pocket of the out-of-town supermarket if you are continually granting them permission which gets successfully challenged because you do not grapple with the real point at issue.

Singh J’s view on the wider issues are both shortly expressed and spot on. A council, or indeed any public authority, should not behave like some entirely selfish private litigant. It owes wider duties, because it is a public authority. It is all very well for it to seek to duck out of the picture if it concedes the merits of some planning challenge. But if it contests those merits, rather different considerations apply.

As Singh J pointed out, judicial review is not like ordinary private litigation.

"More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular ….. a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest."

And if the local authority leaves it up to the supermarket to run the litigation, these public law principles will not apply. The supermarket owes no public law duties, and will not necessarily have access to the documents which explain how the council in fact reached its decision.

So Singh J proposed some steps which a budgetarily-challenged public authority ought to take, if it cannot, for financial reasons, defend its own decision in court in judicial review proceedings:

"It should at least consider the following:

(1) whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;

(2) whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;

(3) whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;

(4) whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so."

If councils run through this list and reflect on its implications, they might begin to realise why, if they truly oppose the quashing of the decision which they reached, they should turn up and say why. If not, then they ought not to have reached the decision in the first place.

Conclusion

The judge’s suggestions strike the right balance between economy and overall fairness. Councils have been so constrained by central government cuts in recent years that one can quite understand why they feel unable to spend chunks of their budgets on lawyers. But they should not be able to cop out quite so easily of a job which their planning functions have told them to perform. After all it was their decision (right or wrong) which triggered the whole judicial review process off. And if they simply disappear from the process the moment someone challenges their decision, that could lead to major injustice. Think of the local planning authority whose internal file discloses a shocking story of bias and incompetence. That LPA writes one letter saying it does not wish to participate, other than opposing, and the interested party and beneficiary of the decision goes and defends the LPA’s decision on what could well be a false basis.

Many things can be privatised, but I rather hope that all of us wish that the courts will continue to expect of government, central or local, that it will be fair and open when it seeks to justify its own decisions.

David Hart QC is a barrister at 1 Crown Office Row. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the set's UK Human Rights Blog.