Cards face upwards – Local Authorities and judicial review

I daresay that most of my readers don’t also read planning law (and neither do I), but Midcounties Co-Operative Ltd v. Forest of Dean [2015] has some wider importance.

There are times when Local Authorities get judicially reviewed, and the Court in this case set out that there are rules that apply to public bodies in their interactions with the Court that there aren’t with private litigants.

David Hart QC’s summary of the case over at UK Human Rights blog is something that I couldn’t better, so I will give you the link so that you can see how it should be done.

http://ukhumanrightsblog.com/2015/05/07/local-authorities-and-judicial-review-they-should-not-put-their-heads-completely-in-the-sands/#more-25909

The nub of it is, that a Local Authority was being judicially reviewed for its planning decision to allow a Tescos out of town supermarket – as this was the third time, they decided that they’d had enough of Court and would decline to participate and just let the wealthy supermarket fight the case if they wanted to.  (That doesn’t really work, since the supermarket chain weren’t a public body accused of behaving unreasonably – it was the Council’s decision to grant permission that was under review, not the supermarket’s decision to ask for it)

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.

The Court rather neatly set out what a Local Authority who proposed not to settle a JR but not to actively attend and fight it would have to do.  (And if you read all of this and say “well, they might as well either settle or turn up and fight if they have to do all of this”, that’s rather the point)

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.

I suppose that technically, a Local Authority who have decided not to turn up to fight their own judicial review might say “Well, our obligation was to consider WHETHER to do those things. And we considered it and decided that we didn’t”

I don’t recommend that. I don’t recommend that at all.

If, many years ago, my friend Simon had asked me for advice before he went up to a nightclub bouncer and said  “You think you’re so hard, because you’ve got muscles, do you want to step outside and we’ll find out how hard you really are?”, I would not have recommended that.  I would have used similar tones and certainty in my advice to Simon as I would to a client suggesting the above approach to judicial review – if somewhat less colourful language.