The Asbestos Victims Support Groups' Forum UK, R (On the Application Of) v The Lord Chancellor

A substantive legitimate expectation requires a promise that is clear, unambiguous and devoid of relevant qualification. It must ordinarily amount to a specific undertaking directed to an identified individual or group. A general assurance to a large and diverse class will rarely suffice.

There is no general legal or constitutional duty to conduct a post-implementation review, or to conduct one to a particular degree of detail. The fairness of a non-statutory review is context-sensitive. A public authority need not adopt consultees’ submissions or answer every point in detail, provided the process is not so unfair as to be unlawful.

The claimant, an umbrella organisation representing asbestos-related disease sufferers, sought judicial review of the Lord Chancellor’s Post-Implementation Review of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It alleged that statements in the Post-Legislative Memorandum and an initial assessment created a legitimate expectation of a thorough and substantive impact assessment, including detailed consideration of non-mesothelioma asbestos claims.

The claimant also alleged that the Lord Chancellor had failed conscientiously to consider consultation responses concerning deductions from compensation, access to justice and the operation of qualified one-way costs shifting. At the hearing, the challenge was confined to the adequacy of the review.

1. Substantive legitimate expectation. The governing standard, stated in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, is that the expectation must arise from a promise that is clear, unambiguous and devoid of relevant qualification. The promise must be understood by reference to how it would reasonably have been understood by those to whom it was made.
2. The statements relied on did not create an enforceable expectation that the review would examine the impact of the reforms separately on every significant class of litigation. They were general statements about the whole of Part 2, were not specific undertakings directed to the claimant or an identified group, and did not make departure unfair in a way amounting to an abuse of power. The broad and diverse class potentially affected was materially different from the focussed assurances considered in cases such as R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755.
3. The extent to which a review could be thorough and substantive necessarily depended on the quality of the available evidence. The claimant and its solicitors supplied mainly general observations and examples, without quantitative evidence demonstrating a disproportionate impact on asbestos-related disease claims. The Lord Chancellor was entitled to regard that material as insufficient.
4. Consideration of consultation responses. The Gunning requirements were not directly applicable to this review. The fairness of a non-statutory consultation or review is fact- and context-sensitive. Under R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] 1 WLR 3923, a decision-maker may assess the whole range of responses and reach an independent conclusion. Fairness does not require adoption of a particular submission or detailed answers to every representation.
5. There had been extensive stakeholder engagement, including a meeting at which the claimant’s concerns were aired. The review was a broad-brush document addressing major themes across civil litigation. Its failure to analyse the asbestos-related evidence in greater detail was not so unfair as to be unlawful. The claim for judicial review was dismissed. Permission to appeal was refused, and costs were ordered against the claimant subject to the costs-capping order.