P, R (on the application of) v London Borough of Haringey

On an application concerning permission for judicial review, the Court of Appeal may grant permission on an additional ground where the point is reasonably arguable and its consideration would assist a coherent determination of the issues. This is so even where the point appears weak, particularly where it is difficult to separate that issue from grounds already permitted. The court should consider whether the issue is best determined by the Administrative Court as part of the substantive judicial review. A minor defect in a notice will not ordinarily render it a nullity where modern authority indicates substantial compliance and absence of prejudice, but the ultimate question may properly be left to the substantive hearing.

A pupil, acting through his mother, sought judicial review of the London Borough of Haringey’s decision that an appeal to an independent appeal panel was out of time. The Administrative Court, on a renewed application for permission, granted permission on three grounds but refused permission on a fourth ground concerning whether a notice specifying 6 October 2006, instead of 4 October 2006, was so defective that it was a nullity.

Administrative confusion led the matter to the Court of Appeal as an appeal rather than as an application for permission to appeal against refusal of permission on that fourth ground. The central issue was whether the fourth ground was reasonably arguable and, if so, whether permission for judicial review should be granted and the matter remitted to the Administrative Court.

1. Permission granted. The only matter before the Court of Appeal was the application for permission to appeal against Gibbs J’s refusal to permit argument on the fourth ground. The three grounds on which permission for judicial review had already been granted were not before the Court of Appeal.
2. The fourth ground was reasonably arguable. It raised whether the incorrect deadline in the notice made it a nullity, so that time for appealing had not begun to run until a valid notice was given. Lord Justice Mummery had doubts about the strength of the point, but considered that it was worth argument in the context of all the grounds.
3. The issue was difficult to separate from questions concerning discretion, the other requirements for an appeal to the independent appeal body, and the date on which time began to run. It was therefore preferable for the Administrative Court hearing the substantive judicial review to consider all the arguments together.
4. The court noted the modern approach, illustrated by R v SSHD ex parte Jeyeanthan [2000] WLR 354, that relatively minor defects in notices which cause no prejudice will generally not invalidate the notice. That observation did not determine the issue at the permission stage.
5. Permission for judicial review was granted on the fourth ground concerning the validity of the notice. The matter was to proceed substantively in the Administrative Court, not in the Court of Appeal.

• Court of Appeal (Civil Division): [2008] EWCA Civ 211. Permission for judicial review was granted on the fourth ground, and the substantive matter was remitted to the Administrative Court.
• Administrative Court: Gibbs J granted permission on three grounds but refused permission on the fourth ground concerning the validity of the appeal notice: (2007) EWHC CO/10655/2006.