Davis, R (on the application of) v Secretary of State for Justice

A claimant who discontinues judicial review after the defendant has filed a defence may require the court’s permission before bringing a further claim against the same defendant arising from the same or substantially the same facts. The court may consider the history of the discontinued proceedings, the apparent strength of the proposed claim, related proceedings and whether an accelerated procedure is appropriate.

Discontinuance does not inevitably determine costs. The court may order the claimant to pay the defendant’s costs where the circumstances justify departure from the usual consequence of discontinuance.

The claimant, a terminally ill prisoner, sought judicial review of the refusal to release him permanently on compassionate grounds. He alleged that the defendant’s positive obligations under articles 2 and 3 of the Convention required his immediate release.

A temporary release application had subsequently been made under Rule 9 of the Prison Rules 1999. The claimant applied to vacate the hearing and then discontinued the whole claim after that application was refused. The court therefore determined the consequences of discontinuance, including costs and whether any further claim would require permission.

1. The substantive claim was discontinued. The court refused to vacate the hearing because the issue of principle concerning the alleged positive obligations under articles 2 and 3 of the European Convention on Human Rights remained live, important and capable of determination without knowing the outcome of the temporary release application.
2. Costs. Although costs do not inevitably follow the filing of a notice of discontinuance, the circumstances justified ordering the claimant to pay the defendant’s costs on the usual terms. The claimant had launched expensive and time-consuming proceedings despite having been told that his eligibility for temporary release was being reassessed. The claim was discontinued immediately after the court refused to vacate the hearing, giving rise to a strong inference that discontinuance sought to circumvent that decision.
3. Further proceedings. The defendant’s application under CPR r.38.4 to set aside the notice was held in abeyance because fairness required the claimant to have a further opportunity to respond. The court preferred the course of recording the consequences of discontinuance under CPR r.38.7.
4. Because the defendant had filed summary grounds of defence and any further claim would arise from the same or substantially the same facts, a further claim would require the court’s permission. In deciding any such application, the court should consider the full procedural history, the overall strength of the claim in light of the evidence and submissions, and whether other proceedings would effectively determine the same issue. Any permission application would be suitable for determination by a single judge, who would also decide the procedure and any directions.
5. The court made no final determination of the underlying articles 2 and 3 claim, but observed that the alleged positive obligation had been overstated.

This was a first-instance judicial review claim in the Administrative Court. The judgment itself records earlier case-management directions made by Julian Knowles J, but no lower-court judgment was under appeal.