Carruthers & Anor v South Norfolk District Council & Ors

Permission to bring judicial review proceedings should be refused where the challenged decision is reasonably arguable only through disagreement with the public authority’s assessment of the statutory disclosure framework, and an adequate alternative statutory appeal exists. Rights under the Audit Commission Act 1998 do not extend to every document connected with an authority’s affairs. Material falling outside that statutory inspection regime may instead require consideration under the Freedom of Information Act 2000. Where the application is unarguable and pursued in an unnecessarily extensive or abusive manner, the court may order costs against the applicant on an oral renewal of permission.

The claimants renewed an application for permission to seek judicial review of South Norfolk District Council’s refusal to disclose documents concerning land and accounting matters. The claim originally also challenged listed building enforcement action, but that issue was abandoned for the renewal hearing.

Permission had been refused on the papers by Ouseley J. The remaining issues were whether the requested documents fell within section 15(1) of the Audit Commission Act 1998, whether any refusal should be pursued under the Freedom of Information Act 2000, and whether costs should be awarded against the claimants.

1. The renewed application for permission was dismissed. The court agreed with Ouseley J that there was no arguable error of law in the Council’s decision to provide some accounting material and refuse other requests.

2. Section 15(1) of the Audit Commission Act 1998 permits inspection and copying of accounts and documents relating to them. It does not necessarily encompass deeds, searches, legal advice or other documents merely because they concern the authority’s property or wider affairs. The Council’s application of that distinction was reasonable.

3. Material refused under the audit inspection regime had also been considered under the Freedom of Information Act 2000. Any challenge to that refusal had an available appeal route, including an appeal to the Information Commissioner. That alternative remedy should be pursued rather than using judicial review as the immediate route of challenge.

4. The claimants were ordered to pay the Council’s costs of filing the acknowledgment of service and attending the renewal hearing. The court accepted the factors relied on under [2003] EWCA Civ 1346, including the unarguable nature of the claim, persistence after warning, extensive and ill-structured material, unfounded allegations of dishonesty and corruption, and the resulting need for attendance at the hearing.

5. Costs were ordered in the sum of £3,460.

High Court (Administrative Court): Ouseley J refused permission on the papers on 17 January 2006. Mr Justice Calvert-Smith dismissed the renewed application and ordered the claimants to pay £3,460 in costs.