Bates & Anor, R (on the application of) v Langstaff

In reviewing decisions made by an inquiry chairman, the Administrative Court should be very slow to find an error of law or irrationality. The intensity of review remains context-specific, but a clear legal error must be shown. The chairman’s assessment under Rule 7 of the Inquiry Rules 2006 is fact-sensitive and discretionary. Where core participants have similar interests, are likely to rely on similar facts, and joint representation is fair and proper, Rule 7 requires them to be represented by a single recognised legal representative. Rule 6 preserves separate representation for core participants outside Rule 7, but does not guarantee every participant representation by a lawyer of their choice.

The claimants, who were core participants in the Infected Blood Inquiry, sought permission to challenge the chairman’s refusal to recognise their chosen firm, MLaw, as their recognised legal representative. The chairman considered that Rule 7 of the Inquiry Rules 2006 applied because their interests and likely evidence were similar to those of other core participants and joint representation was fair and proper. He directed that they choose an existing recognised firm or participate without representation.

Permission had been refused on the papers by Chamberlain J. The renewed application alleged misinterpretation and misapplication of Rule 7, irrationality, inconsistency with earlier representative designations, and other consequential anomalies.

1. Application dismissed. The claimants had not shown an arguable error of law or irrationality. The court also ordered the defendant’s costs of preparing the acknowledgment of service, but not the costs of appearance.
2. The court endorsed the approach taken by Chamberlain J. The scheme of Rules 6 and 7 is coherent. Rule 6 provides for representation of a core participant who is outside Rule 7, and for other persons required or permitted to give evidence or produce documents. Rule 7 addresses the avoidance of multiple legal teams where core participants’ interests and likely facts are similar.
3. Rule 7(1) requires the chairman to assess three conditions: similarity of interests in the inquiry’s outcome, similarity of likely facts, and whether joint representation is fair and proper. The last condition is intensely fact-dependent, and the chairman is well placed to decide it on the material supplied in each application. That decision is subject to review only on the ordinary, demanding principles applicable to irrationality.
4. Where Rule 7(1) applies, Rule 7(2) imposes a clear duty to direct that the relevant core participants shall be represented by a single recognised legal representative. The power to designate a qualified lawyer under Rule 7(2) and Rule 7(4) operates within that structure. It does not create a right to representation by a participant’s personally selected lawyer.
5. The earlier designation of separate firms did not establish inconsistency. Those cases were understood as decisions that the relevant groups fell outside Rule 7(1), making separate representation appropriate under Rule 6. The fact that the claimants might prefer MLaw, or that it had relevant expertise, did not make the chairman’s decision irrational. Shared publicly funded representation was rationally connected with avoiding delay, unnecessary cost and duplication.
6. The suggested conflict between Rule 6(1)(b) and Rule 7(2) was unsustainable. Witnesses ordinarily have different interests and limited involvement, whereas core participants are centrally involved and their publicly funded legal work may overlap substantially.

First-instance judicial review application. Permission was refused on the papers by Chamberlain J on 18 October 2019. The renewed application was dismissed by the High Court (Administrative Court).