No saving grace for "totally without merit" claims

As part of the sweeping reforms to judicial review that came into effect on 1 July 2013, the courts now have the power under CPR 54.12(7) to label a claim as "totally without merit" at the permission stage, thus preventing that case from being renewed at an oral permission hearing.  The rationale for this change was to improve the efficiency of justice by filtering out weak claims.  In a recent immigration case (the judgment for which is yet to be reported), the Court of Appeal has given useful guidance on the application of the "totally without merit" test. The appellant Jamaican national (G) had remained in the United Kingdom unlawfully for ten years before she applied to the respondent Secretary of State for leave to remain.  Her application was refused, upon which G sought permission to apply for judicial review.  The judge considered the matter on the papers and gave clear reasons for refusing permission, stating that he considered G's case to be "totally without merit".  As a result, G was unable to request that the decision be reconsidered at an oral permission hearing. However, G was granted permission to appeal against the finding that the claim was "totally without merit" in order for the Court of Appeal to consider the precise meaning of those words.  G contended that, as the certification of a claim as "totally without merit" denied a non-abusive or non-vexatious claimant the opportunity to make oral submissions, the phrase had to be given a strict meaning.  She submitted that a claim should not be classified as totally without merit unless it is so hopeless or misconceived that a civil restraint order would be justified if a similar claim were repeated. The Court of Appeal dismissed the appeal and provided the following explanation by reference to the background to the new provision.  The concept of "totally without merit" claims first entered the civil procedure lexicon in the context of civil restraint orders (see Bhamjee v Forsdick [2003] EWCA Civ 1113).  It was then taken up in the Civil Procedure Rules in the context of preventing myriad abusive or vexatious (non-judicial review) claims that were hopeless, while enabling meritorious cases to proceed. By virtue of the recent judicial review reforms, the concept has now found its way into judicial review procedure.  The Court in Grace explained that the purpose of this addition was to address the fact that there had been an exponential growth in judicial review applications and a significant number of hopeless applications causing trouble to public authorities, the Administrative Court and the Upper Tribunal.  The Court went on to explain that, if the phrase "totally without merit" were to be construed in the way G suggested, that would frustrate the very purpose of CPR 54.12(7).  The proper meaning of "totally without merit" was simply "bound to fail", and the judge in G's case had applied that test. The Court of Appeal held further that the interpretation of "totally without merit" as "bound to fail"  was supported by two important safeguards.  First, no judge would certify an application as totally without merit unless he was confident that the case was truly bound to fail.  Secondly, a claimant still had access to appeal on the papers under CPR 52.15(1A)(b) to a Court of Appeal judge who, with even greater experience and seniority, would approach the case with independence and care.  Such a construction did not, therefore, detract from the constitutional importance of the judicial review jurisdiction and was consistent with the overriding objective. Comment This case provides useful guidance to practitioners on the application of the "totally without merits" test in the context of judicial review and signals the strong stance being taken by courts against oral hearings in unmeritorious cases, even where a civil restraint order may not have been justified.  It is also interesting to note that the Court of Appeal appears to have accepted at face value the widely disputed premise of the Government reforms – that CPR 54.12(7) was a necessary response to the exponential growth in judicial review applications – as a relevant policy consideration in reaching its decision.

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