Riley, R (On the Application Of) v Secretary of State for Justice

Where a judicial review claim is compromised before full argument, and a material evidential gap remains, the court may adjourn the claim generally with liberty to restore rather than dismiss it or determine the substantive issues. Provisional views expressed to facilitate a pragmatic resolution are not binding findings and should not be treated as determining the claim. Any further restoration should be supported by proper written grounds and compliant court bundles.

The claimant, a severely disabled category A prisoner, sought judicial review concerning the Prison Service’s alleged failure to accommodate his disability, obtain appropriate medical advice and treatment, and provide suitable offender behaviour work. He relied on public law duties and the Equality Act 2010.

Permission, initially refused on paper, was granted on renewal before His Honour Judge Kay QC on 21 November 2011. At the substantive hearing the parties accepted a pragmatic proposal that a further psychiatric report should be obtained. The claimant wished to keep the claim alive because full argument had not been heard. The central procedural issue was whether the claim should be dismissed or adjourned pending the medical advice.

1. Disposition. The claim was adjourned generally with liberty to restore. The Secretary of State agreed to commission a psychiatric report concerning how the claimant’s fortnightly offender-supervision meetings should be managed. No order for costs was made up to the date of the hearing.
2. The court had not heard full argument from either party. It would therefore be inappropriate to make binding observations or determine the substantive public law and equality issues. The judge’s views that the claimant had secured all that could reasonably be achieved, and that the Secretary of State would probably have been more broadly successful on full argument, were expressly provisional and non-determinative.
3. The psychiatric assessment addressed a material gap in the evidence. Until that advice was available, the Secretary of State could not reasonably be expected to implement policies on an informed basis. The Secretary of State was strongly urged to obtain the report promptly and implement whatever recommendations were practicable, while keeping an open mind.
4. The claim was to remain reserved to the judge unless released to another judge. Any application to restore was to be supported by written grounds and considered initially on paper. An unwarranted restoration could attract an adverse costs order.
5. If restored, the parties were required to provide a complete and properly organised bundle complying with Civil Procedure Rules 1998 Part 54 and paragraphs 15 and 16 of practice direction 54A.

Permission to apply for judicial review was refused on paper by His Honour Judge Shaun Spencer QC.

Permission was granted on renewal by His Honour Judge Kay QC on 21 November 2011. The present court did not determine the merits and adjourned the claim generally with liberty to restore.