London College of Business Ltd v Secretary of State for the Home Department

Where alleged interference with proprietary rights arises from a course of public decision-making, the decisions may need to be assessed cumulatively. Individual decisions may appear fair or rational in isolation but become arguably unlawful when viewed alongside the wider process.

A judicial review claim concerning an earlier decision may remain arguable where repeated compromises have prevented the underlying issues from being litigated. However, a claim concerning delay becomes academic once the public authority has completed the promised review and provided the relief that the court could have granted.

The claimant, a higher-education college holding a Tier 4 sponsorship licence, challenged repeated suspensions and the eventual revocation of that licence. Earlier judicial review claims were withdrawn, dismissed or compromised after the licence was restored or a review was offered.

In the present proceedings, the claimant sought to amend its grounds to pursue damages under section 8 of the Human Rights Act 1988 for alleged interference with its proprietary rights under Article 1 of Protocol 1 to the ECHR. The defendant argued that the claim was academic, out of time and an abuse of process. The immediate issue was whether the amended proprietary-rights claim was arguable and should proceed.

1. Permission was granted to pursue the claim under Article 1 of Protocol 1 to the ECHR. This was identified as the single arguable issue.

2. An alleged breach of proprietary rights may require evaluation in the context of a course of conduct. Individual decisions may only become demonstrably unfair or irrational when considered cumulatively with the wider decision-making process. It was therefore arguable that repeated compromises of earlier judicial review proceedings had prevented effective litigation of the cumulative issue.

3. The court did not determine the claimant’s case on goodwill. That issue appeared predominantly, if not entirely, to concern damages. The parties agreed that a proprietary right was engaged at this stage.

4. The challenge based on delay in reviewing the decisions of 22 December 2014 and 19 March 2015 had become academic. The defendant had completed the review, reinstated the claimant on the Register of Sponsors and obtained agreement to an Action Plan. Any relief available from the court on that limb had therefore effectively been provided.

5. The court accordingly granted permission only on the basis that the amended application could pursue the Article 1 of Protocol 1 claim for damages under section 8 of the Human Rights Act 1988.

1. High Court (Administrative Court): Sir Stephen Silber dismissed the earlier application after the defendant offered to reconsider the revocation decision.

2. High Court (Administrative Court): Roger Ter Haar QC, sitting as a Deputy Judge, refused the renewed application because the proceedings were academic and the offered review was an adequate alternative remedy.

3. High Court (Administrative Court): Ben Emmerson QC, sitting as a Deputy Judge, permitted amendment of the grounds and directed an oral hearing.

4. High Court (Administrative Court): The present court granted permission on the arguable proprietary-rights issue.