Badibanga, R (on the application of) v Employment Service

Where an applicant seeks to reinstate a permission application but fails to provide documents necessary for the court to assess the underlying challenge, the court may allow a further period for compliance and direct that the application stand dismissed without further order if the documents are not supplied. On an ex parte application, a costs provision may be inappropriate in the particular circumstances. The court may also direct that relevant judgments and orders be sent to the applicant with the material passages identified.

The applicant sought permission for judicial review of an Employment Service decision concerning exclusion from the New Deal scheme. Permission was refused on the papers by Scott Baker J and, on renewal, by Richards J at an oral hearing on 26 April 2001, when the applicant was absent.

The applicant’s later application for permission to appeal was filed out of time and was dismissed after he failed to provide supporting bundles. He applied to reinstate it and subsequently supplied bundles, but did not provide the Employment Tribunal decision and acknowledgement of service referred to in Richards J’s judgment. The central issue was what procedural order should be made on the incomplete application.

Deputy Master Joseph made a conditional procedural order rather than determining the merits of the proposed judicial review or appeal.

1. The underlying challenge concerned exclusion from the New Deal scheme. The judgment also referred to related Employment Tribunal and Employment Appeal Tribunal proceedings, but it was impossible to determine whether those proceedings were the same as the proceedings mentioned by Richards J because the applicant had not clarified the position.
2. The applicant’s permission application had been filed more than two months out of time. It had been placed in the dismissal list after he failed to provide supporting bundles in compliance with an unless order, and it therefore stood dismissed. Although bundles were later filed with the reinstatement application, two further documents remained necessary: the Employment Tribunal’s decision referred to in paragraph 6 of Richards J’s judgment and the acknowledgement of service referred to in paragraph 9.
3. The applicant was given 21 days to provide both documents. Unless he did so, the application was to stand dismissed without further order.
4. In the particular circumstances of the ex parte application, the court considered it inappropriate to include a provision concerning costs.
5. The associate was directed to send the applicant the order and another copy of Richards J’s judgment, highlighting paragraphs 6 and 9.

• Administrative Court — Scott Baker J refused permission to apply for judicial review on the papers. Richards J refused the renewed application at an oral hearing on 26 April 2001.
• Court of Appeal (Civil Division) — The application to reinstate the earlier permission application was conditionally disposed of, subject to provision of the two missing documents within 21 days.