AT v Secretary of State for the Home Department

Relief from sanction in judicial review proceedings is governed by the same disciplined approach as in other civil litigation. The court must assess the seriousness and significance of the breach, whether there is a good reason, and all the circumstances of the case, giving particular weight to compliance with rules and orders and to efficient litigation. Public authorities receive no special indulgence because of their status or workload. A very late application, unsupported by a good reason and causing clear prejudice and disruption, may be refused even though the court would ordinarily benefit from hearing the authority’s submissions. Such conduct may justify indemnity costs where it takes the case out of the norm.

The claimants sought judicial review concerning the lawfulness of the detention and removal of the first claimant and alleged interference with their Article 8 rights. The Secretary of State failed to file an acknowledgment of service and detailed grounds within the applicable timetable, including an agreed extension to 18 August 2017. Detailed grounds were filed shortly before the substantive hearing, and an application for relief from sanction was issued only on the morning of the hearing.

The central issue was whether, despite those defaults, the Secretary of State should be permitted to participate in the substantive judicial review.

1. Application refused. The Secretary of State was not permitted to rely on the late detailed grounds or participate in the substantive judicial review on the basis sought. The claimants were entitled to proceed with their application.
2. Under rules 54.9 and 54.14 of the Civil Procedure Rules 1998, a defendant wishing to contest judicial review proceedings must comply with the requirements for acknowledgment of service and detailed grounds, subject to the court’s discretion to permit participation.
3. The approach in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v TH White Ltd [2014] EWCA Civ 906 required consideration of whether the breach was serious or significant, whether there was a good reason, and all the circumstances, including efficient litigation and compliance with rules and orders.
4. The breach was serious and significant. No good reason had been advanced. The application for relief was not prompt, the claimants had received no advance notice of the defence, and permitting participation would either deny them a fair opportunity to respond or require an adjournment.
5. Following R (Hysaj) v Secretary of State for the Home Department and Others [2014] EWCA Civ 1633, public bodies are subject to the same procedural standards as other litigants. The different circumstances in R (o.a.o. Ademiluyi) v Secretary of State for the Home Department [2017] EWHC 935 (Admin) did not justify relief. The contrary suggestion in R (Mohammadi) v Secretary of State for the Home Department [2014] EWHC 2251(Admin) was not followed.
6. Indemnity costs were ordered in favour of the claimants because the Secretary of State’s conduct took the case out of the norm.