Mathew Richards, R (on the application of) v The Environment Agency

At the permission stage of a judicial review, the court may adopt an expedited rolled-up hearing where that is a fairer and more efficient way to determine substantive issues than an interim-relief hearing requiring extensive consideration of the claim’s merits and satellite questions.

Expert evidence should be admitted where it is reasonably required to resolve the issues, particularly where it has already been placed before the public decision-maker and forms part of the factual narrative. Procedural directions should protect an interested party’s opportunity to participate.

The claimant sought judicial review concerning hydrogen sulphide emissions from a landfill and alleged that the Environment Agency was required, under the Human Rights Act 1998 or common law, to take positive action in circumstances involving a five-year-old child with severe acute respiratory problems.

The claim remained at the permission stage. The claimant had sought an urgent interim-relief hearing, permission for judicial review and permission to rely on expert evidence. The court instead considered the appropriate timetable, the admission of the expert reports, the possibility of oral evidence and the protection of the interested party’s procedural rights.

1. The court directed an expedited rolled-up hearing on 18 and 19 August 2021. A rolled-up hearing was preferable to a separate interim-relief hearing because the latter would have required a full-day hearing addressing the balance of convenience, justice and the provisional strength of a claim seeking a mandatory order requiring the defendant to exercise statutory powers.

2. The claimant was granted permission under CPR 35.4 to adduce the report and addendum report of Dr Sinha. The reports were reasonably required to resolve the issues. They had already been provided to the defendant public authority and therefore formed part of the factual narrative. It would not be just to exclude them. The defendant was permitted to adduce expert evidence in reply and to raise substantive points in response.

3. The court made arrangements for any expert evidence to be given remotely with cross-examination if, at the substantive hearing, it became necessary in the interests of justice to hear oral evidence. No decision was made at this stage that oral evidence would in fact be required.

4. The interested party had been notified throughout the proceedings and was protected by the applicable judicial-review rules and practices. The directions secured a fair opportunity for it to participate and provide materials and submissions.

This was a first-instance procedural decision at the permission stage of a judicial-review claim. The court directed an expedited rolled-up hearing and granted permission for the claimant’s expert evidence; the substantive issues remained to be determined.