Nolson, R (on the application of) v Stevenage Borough Council

Where an application has been refused on the papers without the parties’ consent to paper determination, the order is treated as made on the court’s own initiative. The affected party may apply under Civil Procedure Rules 1998 rule 3.3(5) to have it set aside, varied or stayed.

This route applies to a refusal of interim relief in judicial review proceedings. The renewed application may technically be determined on paper, but it should ordinarily be heard orally to prevent repetitive applications. An appellate court may refuse to reopen an academic appeal where the point was raised late, lacks a live factual setting, and can properly arise in future expedited proceedings.

The claimant sought judicial review of the Council’s refusal to continue interim accommodation under section 188 of the Housing Act 1996. Butcher J refused urgent interim mandatory relief on the papers. The claimant then sought an oral reconsideration in the Administrative Court, relying on CPR rule 54.12(3).

A Deputy High Court Judge held that the court lacked jurisdiction to reconsider the refusal and that the claimant’s remedy was an appeal to the Court of Appeal. Permission to appeal was refused. By the time the claimant applied to reopen that appeal, his county court appeal under section 204 of the Housing Act 1996 had succeeded and interim accommodation had been obtained. The appeal was therefore academic.

The central issues were whether there was jurisdiction for an oral reconsideration of paper refusal of interim relief, and whether this academic appeal should be reopened in the public interest.

1. Application to reopen refused. The Deputy Judge had been wrong to hold that the Administrative Court lacked jurisdiction. However, the appeal had become wholly academic, and it was not in the public interest to reopen it.

2. Under CPR rule 23.8(c), an application decided without a hearing is treated by CPR PD 23A paragraph 11.2 as an order made on the court’s own initiative, unless all parties consented to paper determination. The affected party may therefore apply under CPR rule 3.3(5) to have the order set aside, varied or stayed. Collier v Williams [2006] EWCA Civ 20 established that route. It applied to the paper refusal of interim relief in this judicial review.

3. The court approved the observation in R (MD (Afghanistan)) v Secretary of State for the Home Department [2012] EWCA Civ 194 that a party whose application for urgent relief has been refused on the papers may renew it orally before a High Court judge, before considering an application to the Court of Appeal. Although a rule 3.3(5) application could itself be determined on paper, an oral hearing will usually be appropriate. It prevents an indefinite sequence of substantially identical paper applications, which may otherwise be struck out as an abuse of process.

4. For future practice, an applicant should state whether an oral hearing is sought. A paper refusal, where there was no consent to paper determination, should identify the right to apply under rule 3.3(5) within the stated period. A request for oral reconsideration should expressly identify rule 3.3(5), unless another specific rule is relied upon.

5. The court declined to decide whether mandatory interim housing relief requires a strong prima facie case. That issue had not formed part of the appeal as advanced below, and it should not be determined without the facts of a live case. The availability of an oral hearing in the High Court meant that an appropriate future case could be decided and, if necessary, expedited.

• Court of Appeal (Civil Division): The application to reopen the refusal of permission to appeal was refused. The court held that the Deputy High Court Judge had jurisdiction to entertain an application under CPR rule 3.3(5), but declined to reopen the now academic appeal.

• High Court, Queen’s Bench Division, Administrative Court: Butcher J refused interim mandatory relief on the papers. A Deputy High Court Judge subsequently held that there was no jurisdiction to reconsider that refusal orally and that the claimant should appeal to the Court of Appeal.