Under changes to the CPR on 1 July 2013, where a judicial review claim has been refused permission and declared totally without merit the CPR provides that:
On considering a paper application for permission to appeal Underhill LJ held that “I am not at present satisfied that the Applicant’s case … in this unusual case is unarguably bad….however, the case is not straightforward, and I am not prepared at this stage to grant permission.” Underhill LJ ordered that permission be considered by the Court of Appeal at an expedited oral hearing.
At the hearing on 4 October 2013 Moses and Gloster LJJ held that the Court of Appeal had no power to hold an oral hearing. The inherent jurisdiction of the Court of Appeal to govern its own procedure had been precluded by the specific provisions of the CPR. The application was remitted to Underhill LJ to decide on the papers without an oral hearing.
The judgment will be of general interest to practitioners in interpreting the effect of the recent CPR changes. It is particularly interesting that the Court of Appeal recognised the power to remit the case back to the original Administrative Court judge to decide on the papers. Employment lawyers will recognise that the EAT has a similar power to this in the employment context. It remains to be seen whether, following the judgment in R(RG – Albania) v Secretary of State for the Home Department, it will also become commonplace in appeals from judicial review proceedings.
Katherine Apps represented the Secretary of State for the Home Department, instructed by the Treasury Solicitor.
