Transfers of judicial review claims

Adam Chapman looks at the lessons from a recent High Court ruling on the appropriate venue for bringing a judicial review claim.

CPR PD 54C - Administrative Court (Venue) provides that, save in relation to a small number of excepted claims, judicial review claims “should be commenced at the Administrative Court office for the region with which the claim is most closely connected” and that “the proceedings may either on the application of a party or by the Court acting at its own initiative, be transferred from the Administrative Court Office at which the Claim Form was issued to another Office. Such transfer is a judicial act” (paragraphs 2.1 and 2.3).

In R (oao Gnanatheepan Subraniam) v Secretary of State for the Home Department [2022] EWHC 3294 (Admin) and 11 other cases, Mr Justice Fordham (who is the Administrative Court Liaison Judge for the North and North Eastern Circuits), in the face of objections from the claimant (and neutrality from the defendant) to his doing so, transferred a claim that had been commenced in the Administrative Court Office (ACO) in London to the Administrative Court in Leeds. This was one of a series of 12 cases (10 judicial review, 2 appeal by way of case stated – see table below) in 2022 in which Mr Justice Fordham had considered the question of a transfer – and in 9 of those cases (in only 1 of which had either of the parties positively supported a transfer) an order for transfer was made. I hope it is not unfair to suggest that one can detect an increasing degree of judicial irritation at the number of cases where the appropriateness of the venue is having to be considered: for example, in Subramaniam, Mr Justice Fordham observed “ N461 was wrongly completed. Not for the first time…This claim should have been filed in Leeds. The failure to do so stands to inject delay. The resistance of transfer interposes a judicial determination, which also stands to inject delay. The claim could and can promptly and properly be determined in Leeds”.

The ‘regionalisation’ of the Administrative Court began in April 2009. It was the result of the adoption of the recommendation of the Judicial Working Group, in its 2007 report “Justice Outside London”, that “…fully operational offices of the Administrative Court should be established in Cardiff, Birmingham, Manchester and Leeds and that judges should regularly sit to hear Administrative Court cases in those centres”. The reason for the recommendation was: “The essential point is proper access to justice is not achieved if those in the regions can only bring judicial reviews and other claims in the Administrative Court in London. There would be substantial saving in public and private expense. The present system discriminates against those who are not in the South East of England.”

The process normally adopted by the ACO in London, where it is considered that a claimant has not commenced proceedings in the appropriate Court, is to make a ‘minded to transfer order’ (MTTO), which permits both parties to the claim to file representations ‘to indicate opposition to the transfer’. Pursuant to CPR PD 54C, paragraph 2.5, those representations will be considered in the light of a “general expectation” that the “proceedings will be administered and determined in the region with which the claim has the closest connection” and that the factors most relevant to determining ‘closest connection’ will be “the subject matter of the claim, the region in which the claimant resides and the region in which the defendant or any relevant office or department of the defendant is based”.

CPR PD 54C paragraph 2.5 further provides that, subject to that general expectation, other relevant circumstances that the Court may consider relevant are: “(a) any reason expressed by any party for preferring a particular venue; (b) the ease and cost of travel to a hearing; (c) the availability and suitability of alternative means of attending a hearing (for example, by video-link); (d) the extent and nature of any public interest that the proceedings be heard in any particular locality; (e) the time within which it is appropriate for the proceedings to be determined; (f) whether it is desirable to administer or determine the claim in another region in the light of the volume of claims issued at, and the capacity, resources and workload of, the court at which it is issued; (g) whether the claim raises issues sufficiently similar to those in another outstanding claim to make it desirable that it should be determined together with, or immediately following, that other claim; (h) whether the claim raises devolution issues and for that reason whether it should more appropriately be determined in London or Cardiff; and (i) the region in which the legal representative of the parties are based”.

As one would expect, Mr Justice Fordham’s reasons for ordering transfers in individual cases involve a fact sensitive application of the considerations set out above. However, a number of themes emerge:

1. Very little weight will be attached to the fact that the parties have instructed London based solicitors and counsel and that a transfer from London will lead to additional costs – in the Khyam case, Mr Justice Fordham said: “It is I think important to appreciate that the choice of London lawyers by the parties will not, of itself, ‘drive’ the choice of London as a venue for a judicial review claim. The location of the lawyers is a relevant factor. So are the cost and time implications of travel. But also relevant is consideration of how it would undermine the purposes of regionalisation if lawyer location and choice of lawyers were to dictate the answer to the question of venue”.

2. The Administrative Court in London is only a regional Court – in the O’Brien case, Mr Justice Fordham said: “The Administrative Court in London is the regional venue for the South-East. It is not the ‘national’ court dealing with ‘national’ cases. It is not the ‘senior’ court dealing with ‘senior’ public authorities. The non-London regional venues are not provincial courts dealing with local issues”.

3. Considerable weight will be attached to the fact that the regional Courts are resourced to deal with judicial review cases – in the Fortt case, Mr Justice Fordham said: “…the use of the regional Administrative Court – including in the present case – makes best use of court resources and serves not to over-burden the RCJ. The Administrative Court in Manchester has the capacity and resources, alongside its workload, to determine the claim in an appropriate time frame”.

Of the three cases that Mr Justice Fordham decided not to transfer from London, two – the Newcastle United case and the O’Brien case – were ‘London as the regional venue for the South-East’ cases, involving decisions of Kingston Crown Court in the former and the Metropolitan Police in the latter. In the third, the Group For Action on Leeds Bradford Airport case, the reason for not ordering a transfer was that the case raised issues similar to those raised in separate proceedings that had already been issued (in London, and apparently correctly so) and the parties’ intention was to have the two cases dealt with together. That tipped the balance for Mr Justice Fordham to decline to order a transfer to Leeds, but he made clear that otherwise the case would have been transferred and the fact that the challenge was to the Government’s national ‘Jet Zero Strategy’ would not have been a reason for the case to have been administered and heard in London.

What can be learnt from this? First, from a Claimant’s perspective, if there is a wish for a case, which on the face of it does not have the ‘closest connection’ to the South-East, to be heard in London, specific and convincing reasons for that will have to be provided (and should be provided when the claim is issued). Second, the approach to ‘regionalisation’ has moved far beyond the original intention of the Judicial Working Group, which was to enable Claimants, if they chose to do so, to bring judicial review claims in a Court closer to where they live. This has become a virtual obligation, regardless of any additional expense that might be incurred, to bring claims in regional courts.

Lastly, and to put this in a wider context, it still seems to be the case that the overwhelming majority of judicial review claims are being issued, and heard, in London. Although HMCTS’ statistics are not completely clear, it appears that approximately 80% of claims are issued in London, just under 10% in Birmingham and the remainder evenly divided between Manchester, Leeds and Cardiff. Of the claims issued in London, around 3% are transferred to a regional Court.

Adam Chapman is a partner at Kingsley Napley.