Youssef & Ors v The Secretary of State for Foreign And Commonwealth Affairs

A preliminary issue should be ordered only sparingly. The court must first ask whether deciding it would determine the dispute or a substantial aspect of it. If so, the issue should ordinarily be a succinct and relatively short point capable of producing a decisive result. A preliminary issue is inappropriate where substantial factual evidence and further legal issues would remain, or where determining it would cause additional hearings, delay and expense. The court should also consider whether the issue can be decided on agreed facts, whether it may become irrelevant, and whether it would fetter a just resolution.

The claimants brought judicial review challenges to decisions and alleged failures by the Secretary of State relating to designation under the United Nations sanctions regime concerning Al-Qaida and the Consolidated List. The second to fourth claimants sought determination of a preliminary issue concerning whether designation required reasonable suspicion or evidence sufficient to satisfy the civil standard. The Secretary of State opposed the application, contending that the proposed issue would not resolve the claims and would require detailed factual assessment. The court considered whether the issue met the established criteria for a preliminary hearing.

1. The application for a preliminary issue was refused. The proposed issue was not likely to determine the entire dispute or any substantial issue of liability. Even if the claimants succeeded, questions would remain concerning entitlement to declarations, delay, alleged breaches of rights under the Human Rights Act 1998, and damages.
2. The issue would not be determinative because, even if reasonable suspicion were the wrong criterion, the Secretary of State maintained that the same decisions could have been reached under the correct test. The court would therefore still have to examine the evidence and decide what would have happened if the correct approach had been used.
3. The necessary inquiry would require substantial evidence concerning the information available at different times, its assessment by the decision-maker, possible public interest immunity issues, and the hypothetical application of any corrected test. It would not constitute the succinct, knockout point described in SCA Packaging Ltd v Boyle [2009] UKHL 37, adopting the formulation derived from O’Shea Construction Ltd v Bassi [1998] ICR 1130.
4. The court applied the cautionary principles in Tilling v Whiteman [1980] AC 1 and the checklist in Steele v Steele (2001) CP Rep 106. The proposed issue would increase cost and delay, require two hearings rather than one, and might be irrelevant because the Secretary of State could succeed on the facts under whatever legal test applied.
5. The possible implications of Ahmed & others v Her Majesty’s Treasury & Others [2010] 2 AC 534 also suggested that the issue was legally complex, although this was only an additional provisional consideration. The existing directions concerning disclosure and further case management remained in force.

The judgment was given at a case management conference in the Administrative Court. It determined only the second to fourth claimants’ applications for a preliminary issue; the wider judicial review claims remained to be progressed.