D, R (on the application of) v Secretary of State for the Home Department

Judicial review is concerned with live issues and will generally not proceed where the claim has become academic. The court retains a cautious discretion to hear an academic case where a sufficient public-interest reason exists. A possible claim for exemplary damages will not, without more, justify continuing an otherwise academic judicial review, particularly where the claim has not been pleaded. Where material evidence remains outstanding, a trial should not ordinarily be split if doing so would cause duplication, increased costs or a risk of inconsistent findings.

Two judicial review applications concerned the treatment of alleged child asylum seekers as adults, with consequences for fast-track processing and detention.

In D's case, the Secretary of State accepted that the claimant was a minor, that the decision to treat her as an adult and her detention were unlawful, and agreed to reconsider her asylum claim and compensate her. The remaining dispute concerned whether the claim should nevertheless proceed, including in the public interest and by reference to exemplary damages.

In Z's case, the claimant challenged the continuing decision to treat him as an adult. Further expert and social-services evidence had been served shortly before the hearing. The central procedural issue was whether the trial should be split or adjourned.

1. D's application. The claimant's judicial review claim was allowed by consent. It was declared that she was a minor, that the decision to treat her as an adult was unlawful, that the decision to fast-track her asylum claim was unlawful, and that her detention at Oakington between 9 November and 10 December 2004 was unlawful. The damages claim was transferred to the Queen's Bench Division for assessment if damages were not agreed, with liberty for any necessary amendments and further evidence.

2. The court declined to continue the otherwise academic public-law challenge. Judicial review will not generally lie where there is no live issue: R (Okturu) v Secretary of State for the Home Department, [2001] EWCA Civ 126. Although the court has a discretion to hear an academic public-law appeal or claim where there is a good public-interest reason, that discretion must be exercised cautiously. The approach in R v Secretary of State for the Home Department ex p Salim, [1999] 2 WLR 483, did not justify continuation here.

3. The possible availability of exemplary damages did not provide a sufficient public-interest reason. No such claim had been pleaded, and any issue about exemplary damages could be dealt with fairly on the assessment of damages, subject to any application to amend and appropriate evidence. The court expressly avoided expressing a view on the merits of that claim.

4. Z's application. The proposed split trial was refused. The issues were interrelated, further evidence remained to be considered, splitting the hearing would risk duplication, increased costs and inconsistent findings, and the same judge might not hear both stages. The whole claim was therefore adjourned.

5. The claimant was to serve any amendments and further evidence within six weeks. The Secretary of State was to serve any response, further evidence and any further decision letter within four weeks thereafter. In D, the defendant was ordered to pay costs up to and including 31 December 2005, with no order as to costs thereafter. In Z, the costs of and occasioned by the hearing were costs in the case.

First-instance judicial review proceedings in the Administrative Court. No prior appellate decision is stated in the judgment.