Grace, R (On the Application Of) v Secretary of State for the Home Department

An application for permission to apply for judicial review is totally without merit if it is bound to fail. The standard under the Civil Procedure Rules does not require abusive, vexatious or repeated applications. The civil-restraint-order context does not impose a stricter threshold. Certification requires careful consideration and confidence that the claim is bound to fail. Independent paper consideration by a Court of Appeal judge provides a further safeguard where certification prevents an oral renewal.

The claimant challenged the Secretary of State’s refusal of leave to remain. Her judicial-review claim was considered on the papers by Kenneth Parker J in the Administrative Court. He refused permission and certified the claim as totally without merit.

Permission to appeal was limited to the proper approach to certification. The central issue was whether a claim could be certified as totally without merit only if it was so hopeless that repeated applications would justify a civil restraint order.

1. Appeal dismissed. The court held that, for the purposes of Civil Procedure Rules rule 54.12(7) and the equivalent Upper Tribunal Rules provision, “totally without merit” means “bound to fail”.
2. The claimant’s proposed stricter test was rejected. The rule does not require the claim to be abusive, vexatious or persistently made. Although the expression originated in civil-restraint-order practice, that practice addresses repeated hopeless litigation and restrictions on future claims. The judicial-review provision has the broader purpose of avoiding the disproportionate burden created by hopeless applications on public authorities, the Administrative Court and the Upper Tribunal.
3. The loss of an oral renewal did not justify importing the civil-restraint-order threshold. A judge should certify a claim only after careful consideration and when confident that it is bound to fail. The claimant may seek paper consideration by a Court of Appeal judge, who must consider the application independently and with the same care.
4. Those safeguards were sufficient. The construction was consistent with the overriding objective and did not diminish the constitutional importance of judicial review. There was no basis to conclude that the judge below had applied the test incorrectly.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal and held that totally without merit means bound to fail: [2014] EWCA Civ 1091.
• High Court, Administrative Court — Kenneth Parker J refused permission to apply for judicial review on the papers and certified the claim as totally without merit. No citation was stated in the judgment.