Parsipoor v Secretary of State for the Home Department

A judicial review claim for which permission has been granted cannot be finally determined without an oral hearing unless all parties agree. The requirement in rule 54.18 of the Civil Procedure Rules 1998 applies to every final disposition, not only a decision on the merits. It therefore covers dismissal because the claim has become academic or because the claimant lacks standing. The general power in rule 23.8(c) to deal with an application without a hearing yields to the specific judicial-review rule. Written submissions do not replace the entitlement. The appeals were allowed, leaving the Administrative Court to determine the appropriate course after an oral hearing.

Bijan Parsipoor, and Sardar Ahmed Salih and Shelan Reza, brought judicial review claims concerning decisions under section 4 of the Immigration & Asylum Act 1999. After each appellant obtained indefinite leave to remain, the claims became academic as between the parties. Keith J directed written representations about disposal. HHJ Langan QC refused an oral hearing, and Judge Behrens subsequently refused an oral hearing and dismissed the claims on the papers. Permission to appeal was granted on the procedural issue only. The central question was whether the claims could be finally disposed of without an oral hearing under the general application power, despite rule 54.18 and the appellants’ lack of agreement.

Appeals allowed. The Court of Appeal held that the operative final decision was Judge Behrens’s refusal of an oral hearing and dismissal of the judicial review claims. It did not decide the substantive section 4 issue or whether the claims should proceed despite becoming academic.

1. Rule 54.18 of the Civil Procedure Rules 1998 applies to the final disposition of a judicial review claim. Its scope is not confined to decisions on the merits. A decision that the claim should not be determined on its merits because it is academic, or because of lack of standing, is still a decision on the claim.
2. Once permission to apply for judicial review has been granted, the claimant is entitled to an oral hearing before final determination unless all parties agree that the claim may be decided without a hearing. Written representations alone are insufficient.
3. Part 23 and rule 23.8(c) contain general powers to deal with applications without a hearing. Those powers yield to the specific requirement in rule 54.18 and cannot be used to dispose finally of a judicial review claim without agreement. A specific rule would be needed to qualify rule 54.18.
4. The guidance in [2006] 1 WLR 1945 concerned paper disposal of applications and did not support final determination of a judicial review claim without an oral opportunity. The reasoning in [2007] 1 WLR 1864 and [2004] 4 All E.R. 793 proceeded on the same assumption. The importance of oral argument was also recognised in [2002] EWCA Civ 1104.
5. Pill LJ considered that Article 6 of the European Convention on Human Rights covered the proceedings, but the appeal could be resolved by construing the Rules. Lloyd and Rimer LJJ likewise regarded it as unnecessary to decide the Article 6 issue. The applications were to return to the Administrative Court for an oral hearing and determination of the appropriate next step.

Appeal route

1. Court of Appeal (Civil Division) — In [2011] EWCA Civ 276, the appeals were allowed on the procedural issue. The appellants were entitled to address the Administrative Court orally before their judicial review claims were finally decided.
2. High Court, Administrative Court — Permission to apply for judicial review had been granted by Langstaff J. Keith J directed written representations on whether the claims should be disposed of or proceed to a full hearing. HHJ Langan QC refused an oral hearing, and Judge Behrens later refused an oral hearing and dismissed both claims on the papers.