Court of Appeal urges consideration of rule changes to procedure for judicial review claims after dismissing challenge to ‘lockdown’ regulations

The Court of Appeal has expressed concern at the trend towards the “rolling” approach to judicial review and also “excessive prolixity and complexity” of grounds of challenge, after rejecting a businessman’s appeal over the ‘lockdown’ regulations made in response to the Covid-19 pandemic.

In Dolan & Ors, R (On the Application Of) v Secretary of State for Health And Social Care & Anor [2020] EWCA Civ 1605 the appellants had submitted that the regulations imposed sweeping restrictions on civil liberties which were unprecedented and were unlawful on three grounds:

1. Government had no power under the legislation they used to make the regulations, namely the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008 ("the 1984 Act").
2. The regulations were unlawful applying ordinary public law principles.
3. They violated a number of the Convention rights which were guaranteed in domestic law under the Human Rights Act 1998 ("HRA").

Although the regulations were amended on several occasions and have since been repealed, the appellants contended that it remained important that the legal issues which arose should be authoritatively determined in the public interest.

Mr Justice Lewis had refused permission to apply for judicial review on 6 July 2020, having heard oral argument four days earlier. The claimants applied for permission to appeal his order refusing permission.

The Court of Appeal (the Lord Chief Justice Lord Burnett, Lady Justice King and Lord Justice Singh) reached the following conclusions:

i) Permission to bring a claim for judicial review was granted but limited to Ground 1 (the vires argument).

ii) The substantive claim for judicial review was retained within the Court and not remitted to the High Court.

iii) The claim for judicial review on Ground 1 should be dismissed. The Secretary of State did have the power to make the regulations under challenge.

iv) The Court refused permission to appeal against the decision of Lewis J insofar as he refused permission to bring a claim for judicial review in respect of Ground 2 (the domestic public law arguments) and Ground 3 (the arguments under the HRA). “Those grounds are now academic, because the regulations under challenge have been repealed, and, in any event, they are not properly arguable.”

In a postscript the Court said:

116. In a number of recent cases this Court has noted that there is "increasing concern about the need for appropriate procedural rigour in judicial review cases": see R (Spahiu) v Secretary of State for the Home Department: Practice Note [2018] EWCA Civ 2064; [2019] 1 WLR 1297, at para. 2, where earlier authorities are set out (Coulson LJ). The present case leads us to repeat that concern.

117. Procedural rigour is important not for its own sake. It is important in order for justice to be done. It is important that there must be fairness to all concerned, including the wider public as well as the parties. It is important that everyone should know where they stand, so that, for example, the defendant can properly prepare evidence in a timely fashion.

118. This Court has also deprecated the trend towards what has become known as a "rolling" approach to judicial review, in which fresh decisions, which have arisen after the original challenge and sometimes even after the first instance judgment, are sought to be challenged by way of amendment: see Spahiu, paras. 60-63. Although, as Coulson LJ said, at para. 63, "there is no hard and fast rule", he was right to say that it will usually be better for all parties if judicial review proceedings are not treated as "rolling" or "evolving". In our view, that is particularly so in a context like the present, where the regulations have been amended, sometimes very quickly, and where the issues raised by the grounds will often turn on the state of the evidence as it was at a particular time. As we have mentioned, at one time, there was an application to amend the grounds so as to permit a challenge to be made to the regulations that were made on 3 July 2020. Fortunately, we did not have to determine that application, since it was not pursued, but we consider that this is precisely the kind of case in which "rolling" judicial review challenges should not be brought.

119. We have a particular concern in this case about the length and complexity of the grounds of challenge. The Amended Statement of Facts and Grounds runs to 87 pages. This was followed by Supplementary Grounds, which were another 13 pages. It is impossible to see how such statements can be regarded as complying with the requirement in the Administrative Court Judicial Review Guide 2020, at para. 6.3.1.1: that the document "should be as concise as reasonably possible, while setting out the claimant's arguments. The grounds must be stated shortly and numbered in sequence". That Guide was published after the present proceedings were commenced but similar guidance was given in earlier editions of that Guide: see e.g. the 2019 edition, at para. 6.3.4.1. Furthermore, this Court has, on more than one occasion, emphasised the need for a clear and succinct statement of the grounds: see e.g. R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, at para. 68 (Singh LJ).

120. Despite these statements, we are concerned that a culture has developed in the context of judicial review proceedings for there to be excessive prolixity and complexity in what are supposed to be concise grounds for judicial review. As often as not, excessively long documents serve to conceal rather than illuminate the essence of the case being advanced. They make the task of the court more difficult rather than easier and they are wasteful of costs. It is for these reasons that skeleton arguments are subject to length constraints and so too, for example, the length of printed cases in the Supreme Court.

121. Although the Administrative Court Judicial Review Guide is clear, we consider that the time has come to invite the Civil Procedure Rule Committee to consider whether any amendments to the Rules or Practice Direction governing judicial review claims are called for to contain the problem we have identified.

Following the ruling, the appellant, Simon Dolan, confirmed on his Crowd Justice page that he would appeal to the Supreme Court.

He said: “We did score one important victory. The three judges allowed an important ground of the appeal which concerned the legal powers of ministers to make the lockdown regulations using the Public Health (Control of Infectious Disease) Act 1984. We argued that they had acted ‘ultra vires’ (beyond their powers) by using this legislation and that as a result, the lockdown restrictions imposed by the Government were illegal.

“The Court of Appeal accepted that it was in the public interest for the appeal to be allowed on this important legal point. In doing so, they overturned Mr Justice Lewis's ruling back in July that this point was unarguable."

Mr Dolan added: “Unusually, having allowed the appeal on the ultra vires point, the Court decided to make a final, substantive ruling on the substance of the issue itself – rather than send it back to the High Court.

“Unfortunately, however, having considered it, the Court of Appeal held against us. It has ruled that on the wording of the 1984 statute, the Government does have the power to impose measures against the whole population as it has been doing.

“We still disagree strongly and the fight will go on. We can and will seek permission to appeal the ultra vires point to the Supreme Court."

Mr Dolan said many eminent lawyers, including Lord Sumption, had questioned whether the 1984 Act did give the Government the power to the lockdown regulations it has been imposing since March 26.

He also noted that the Court of Appeal was not asked to judge on later restrictions which were put into place from September. "We are still pursuing a separate legal case to challenge the lawfulness of those later regulations in a separate judicial review."

Commenting on the Court of Appeal's criticisms of the practice of "rolling judicial review", he said: “We have relied on doing this throughout both of our judicial reviews purely because the Government has repeatedly changed the lockdown legislation – sometimes within a couple weeks of the last change being made.

“The Court suggested such rolling reviews should not be allowed. We profoundly disagree. If we were required to file a completely new set of proceedings every time the Government amended the lockdown, it would make it even harder for them to face scrutiny. It is already hard enough to challenge a constantly moving target.

“It would also leave each legal challenge more vulnerable to the charge that it is ‘academic’. That seems to us to be grossly unfair to would-be claimants."

Mr Dolan added how the legal challenge had become one of the largest crowdfunded cases in UK legal history, raising over £410,000 from almost 14,000 pledges. "This fight is on behalf of all of those people."