TABASSUM HUSSAIN (R on the application of) v SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE

A judicial review claim which has become academic should generally not proceed to determination unless there is a good reason in the public interest. A claim may be struck out after permission where a post-permission change of circumstances provides a clear-cut reason why a substantive hearing has become inappropriate. Convention-rights challenges to temporary measures may be fact-specific and historic, and may not establish a useful precedent for future circumstances. Permission for judicial review does not create an entitlement to a substantive determination if the claim later loses viability. Procedural rigour requires claimants to reassess the position after material changes and to pursue any live challenge promptly.

The claimant sought judicial review of the prohibition on collective worship imposed during the Covid-19 pandemic, alleging that it unjustifiably interfered with Article 9 rights. Permission was granted by Swift J, who refused interim relief. The prohibition ceased to have effect on 4 July 2020. The defendant subsequently applied to strike out the claim on the grounds that it had become academic and had not been pursued diligently.

The Court of Appeal’s decision in R (Dolan) v Secretary of State for Health and Social Care had treated a similar Article 9 challenge as academic after the restrictions ended. The issues were whether the present claim should nevertheless proceed in the public interest, whether lack of diligent pursuit justified strike-out, and whether the proceedings should instead be stayed.

1. Outcome. The claim was struck out because post-permission changes had made the challenge academic and there was no good reason in the public interest to determine its historic merits. The claimant was ordered to pay £4,000 towards the defendant’s costs. Permission to appeal was refused.
2. Academic claims. A judicial review court may decline to determine an academic claim, but may proceed where there is a good reason in the public interest. The present challenge concerned the Article 9 compatibility of a past prohibition in a particular factual and regulatory setting. Its resolution would depend on the evidence and circumstances existing at the time and would not provide a useful precedent for a future prohibition.
3. Effect of Dolan. The Court of Appeal had held that a similar Article 9 challenge became academic when the prohibition ceased. Its reasoning applied despite factual differences between the two cases. The reference to the present claim as pending did not indicate that a substantive hearing was inevitable.
4. Strike-out and permission. Strike-out is an exceptional residual power, available where grounds arising after permission make continuation clearly inappropriate. Granting permission does not establish an entitlement to a substantive determination. Claimants and their representatives must reassess the claim after material changes in circumstances.
5. Diligence and future proceedings. Failure to pursue the claim diligently was not, by itself, a good ground for strike-out. A stay was inappropriate because any future challenge would require a disciplined pleading directed to the new measure, its context and the remedies sought. Keeping the present proceedings alive would conflict with the procedural discipline required by the rule against rolling judicial review.
6. Substantive merits. The court did not determine whether the prohibition was compatible with Article 9. That question remained open for a prompt challenge to any future prohibition.

The judgment records that Swift J granted permission for judicial review and refused interim relief on 22 May 2020: [2020] EWHC 1392 (Admin). The Court of Appeal later upheld the treatment of a similar Article 9 challenge as academic in R (Dolan) v Secretary of State for Health and Social Care: [2020] EWCA Civ 1605; [2021] 1 WLR 2326. The present High Court claim was subsequently struck out.