Clarification of the meaning of “totally without merit” applications for judicial review

On 9 June 2014, the Court of Appeal in R (on the application of Grace) v Secretary of State for the Home Department (2014) (unreported) dismissed an appeal against a decision not to permit an oral hearing to reconsider whether or not the claimant should be given permission to seek judicial review.

The claimant was a Jamaican national, who had remained unlawfully in the UK for 10 years before applying to the Secretary of State for leave to remain. Her application was refused and she sought to review that decision. The judge, having considered the application for permission on paper, refused permission and stated that the case was "totally without merit". Normally, where an application for permission is refused on paper, the claimant may ask the court to reconsider its decision at an oral hearing. However, under CPR 54.12(7), where a case is considered “totally without merit”, no additional oral hearing is allowed. The claimant appealed that decision.

The Court of Appeal considered the meaning of “totally without merit”. The claimant argued that a claim should only be classified as totally without merit if it was so hopeless or misconceived that a civil restraint order would be justified if a similar claim was repeated. A civil restraint order is an order restraining a party who has issued claims or made applications that are totally without merit, from making further claims or applications without the court's prior permission. The civil restraint order process, therefore, operates as an initial filtering procedure, ensuring that unmeritorious claims are not permitted to proceed.

The Court of Appeal dismissed the appeal, concluding that the purpose of CPR 54.12(7) was not only to prevent repetitive applications but also to address the fact that there had been exponential growth in the number of applications for judicial review and that hopeless applications were causing trouble to the public authorities and courts dealing with them. Accordingly, a case totally without merit was simply one that was “bound to fail”. The Court of Appeal considered applying the claimant’s more onerous meaning would frustrate the purpose of CPR 54.12(7).

Comment

Claimants making judicial review applications need carefully to consider whether their claims have sufficient merit to be granted permission to proceed to the substantive stage of judicial review. In particular, those considering making applications for strategic or tactical reasons (i.e. in order to delay or otherwise impact public authority decisions) may be unwise taking this course of action. Given the Court of Appeal’s tougher approach and sympathy for those dealing with such applications, it is likely that tactical applications with little or no merit will be dealt with more swiftly going forward, minimising the benefit of making such applications in the first place.