30/03/2020

Where to go?

If, in a judicial review application, you have been refused on an application for interim relief on the papers, where you you go to challenge that decision?

Nolson, R (on the application of) v Stevenage Borough Council (2020) EWCA Civ 379

This was an appeal which, although the underlying application for interim relief had become academic, as the homeless claimant had succeeded in his s.204 appeal, went ahead as it was on an important matter of principle. The JR was of a refusal to provide temporary accommodation pending review an/or appeal by the council.

This was refused by the admin court on the papers. The claimant then applied under CPR rule 54.12(3) for an oral reconsideration. This was refused by the High Court on the basis that it “had no jurisdiction to consider it, holding that rule 54.12(3) did not apply and the appropriate procedural course to challenge the decision to refuse interim relief was to appeal to the Court of Appeal”.

The Court of Appeal found that the relevant provision was CPR 3.3(5) and held:

i) In any application to the court, even where the relevant court form does not ask the specific question, the applicant should generally indicate whether he wishes to be heard orally or whether he is content for the application to be dealt with on the papers alone. Whilst in itself that will not prevent a later application under CPR rule 3.3(5) (even by the applicant himself), it will give the other parties an opportunity to consent to the application being dealt with on the papers alone, which would prevent such a further application.

ii) Where the court refuses an application on the papers, unless both parties have consented to it being dealt with on the papers alone, the order should be endorsed with a statement of the right to make (within 7 days or such other time as the court considers appropriate) an application to have the order set aside, varied or stayed under CPR rule 3.3(5). If the parties have consented to a paper determination, then the order will be final and should be endorsed with a statement of the right to appeal to this court within 21 days.

iii) Any application for an adverse decision made on the papers to be “reconsidered” at an oral hearing should clearly state that it is made under CPR rule 3.3(5) (or, if made under another specific provision of the rules, that it is so made).

So, this is the path (not appeal to the Court of Appeal) for any refusal of interim relief made on the papers.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. Michael Hall

    Giles, Thank you for this helpful article. There is one point I am not clear about. Am I not right in thinking that the quotation you have given is from the decision of Hickinbottom LJ in the Court of Appeal which you have provided a link to, rather than the decision of the Administrative Court? Although Hickinbottom LJ refused permission to appeal his decision was reported as he gave advice about the part of the CPR to quote when applying for reconsideration of decisions to refuse relief on the papers without a hearing, and that it should have been reconsidered at an oral hearing in the High Court. Should ‘High Court (Admin)’ therefore read ‘Court of Appeal’?

    Reply
      • Bernie Brandon

        well done Giles and Michael I think this could be very important and this particular time with everyone under pressure I dare to think that many of the judges will be making the wrong decisions and will forget that common sense and ordinary logic should be huge stepping stones on the way to justice so this little piece of knowledge for practising solicitors and even barristers is hugely valuable at this time I’m p

        Reply

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