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

An applicant for interim relief in public-law proceedings must show a real, rather than fanciful, prospect of success. The balance of convenience must then reflect the wider public interest, the risk of irreversible loss to affected individuals, and the juridical status of the measure challenged. A temporary restraint is more readily justified where the measure is unlegislated government policy, has limited use, and may prevent effective access to the court.

A protective costs order should include a reciprocal cap on the defendant’s liability if the claimant succeeds. The cap need not match the claimant’s exposure, but must permit only reasonably modest representation while taking account of any recoverable success fee and the public interest in conditional-fee funding.

The claimant sought judicial review of the Secretary of State’s Section 3 removal policy. The policy permitted removal with less than 72 hours’ notice in specified exceptional situations, subject to safeguards. The claimant contended that the policy could deny removees a practical opportunity to obtain legal advice and challenge removal before it occurred.

At this first-instance interlocutory hearing, the court determined the claimant’s renewed application for interim relief and the Secretary of State’s application to vary an existing protective costs order by imposing a reciprocal cap on the claimant’s recoverable costs. The central issues were whether the policy should temporarily be restrained pending an expedited substantive hearing, and the proper terms of costs protection.

1. Interim relief was granted. The court did not determine the substantive legality of the Section 3 policy. It held, however, that the judicial-review claim had a realistic prospect of success. In public-law proceedings, the American Cyanamid Company v Ethicon Limited [1975] AC 396 approach is modified: an applicant must show a real prospect of success before a public authority is restrained.

2. The balance of convenience favoured temporary relief. The court gave particular weight to the risk that an individual might be removed without a practical opportunity to advance a legally valid challenge. It also found that the operational impact would probably be minimal because the substantive hearing was imminent and the policy had been used infrequently.

3. The policy’s juridical status reinforced that conclusion. Unlike primary legislation or the Immigration Rules, it was an unlegislated administrative policy. It had not been laid before Parliament and the evidence suggested that consultation before its promulgation had been unsatisfactory. Those features reduced the weight otherwise given to the public interest in allowing the Secretary of State to continue applying the policy.

4. The interim order covered the challenged parts of Section 3, including the consent exception in paragraph 3.1.5. It did not cover paragraph 3.1.6, the port-cases exception, which was not challenged.

5. The protective costs order was varied. Applying R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 and R (on the application of Buglife, the Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation [2008] EWCA Civ 1209, the court held that there must be a reciprocal cap on the Secretary of State’s liability if the claimant succeeded. The cap was not required to equal the claimant’s £5,000 exposure, but had to be reasonably modest and reflect modest representation, the claimant’s incurred costs, and the recoverable success fee. If not agreed, its amount was to be assessed by a costs judge.

6. The costs of the interlocutory hearing were ordered to be costs in the case.

High Court (Administrative Court): This was a first-instance judicial-review claim. Permission had been granted on the papers and interim relief had previously been refused on the papers, with an oral hearing directed. No appellate history is stated in the judgment.