R (on the application of Kate Thomas) v Judicial Appointments Commission

At the permission stage, an in-principle challenge to a public appointment process should proceed to a full hearing where it is arguable and the public interest in fairness and transparency makes detailed examination appropriate. Confidentiality duties under the Constitutional Reform Act 2005, section 139(4)(a) and (5), do not necessarily foreclose a fairness case that the decision-maker should seek a consultee’s consent to disclosure or provide an anonymised gist of adverse comments. A challenge to whether Regulation 30 permits statutory sub-consultation may be arguable. An Article 8 formulation may add little, but can proceed. An Article 14 amendment may be refused where the comparator is not analogous, the issue adds no advantage, discrimination is doubtful, and the point was not taken below.

The claimant, a District Judge, challenged the JAC’s decision not to recommend her for circuit judge appointment after the Selection and Character Committee downgraded her competency assessment in light of statutory consultation evidence. Lang J refused permission on 30 March 2023; Swift J refused permission again on 6 December 2023, holding the grounds unarguable. The appeal concerned whether permission should be granted for challenges based on procedural fairness, Article 8 and the construction of Regulation 30 of the Judicial Appointment Regulations 2013/2192, together with an application to add an Article 14 discrimination ground. The central issue was whether those in-principle challenges required determination at a full judicial review hearing.

The Court of Appeal granted permission to appeal and granted limited permission to bring judicial review proceedings on fairness, Article 8 and the interpretation of Regulation 30 of the Judicial Appointment Regulations 2013/2192. Permission to amend to add an Article 14 ground was refused.

1. Fairness. The central issue was whether confidentiality owed to statutory consultees prevented the JAC from giving a candidate an opportunity to respond to adverse consultation material. It was arguable that, in some circumstances, fairness might require the JAC to seek the consultee’s consent to disclosure or provide the candidate with the gist of the comments in an anonymised form. The interaction between fairness and confidentiality under section 139(4)(a) and (5) of the Constitutional Reform Act 2005 was left for determination at the substantive hearing.
2. Article 8. The court doubted that presenting the fairness issue as an Article 8 claim would add anything substantial and might complicate the analysis. It nevertheless considered that permission should not be refused on that basis.
3. Regulation 30. The argument that Regulation 30 does not permit statutory sub-consultation was sufficiently arguable, particularly because it was closely connected with the fairness of the appointment process. The court did not finally determine the regulation’s proper construction.
4. Article 14. Permission to amend was refused because prima facie discrimination was doubtful, the proposed comparator was not analogous, the justification issues would duplicate Article 8, and the point had not been taken below.
5. Directions. The court retained the case under CPR 52.8(6), directed a final re-amended claim within 14 days, and contemplated a substantive hearing of about two days in the Michaelmas term 2024.

• Court of Appeal (Civil Division) — In [2024] EWCA Civ 665, granted permission to appeal, granted limited permission for judicial review on three grounds, refused permission to add an Article 14 ground, and retained the case.
• High Court, Administrative Court — Swift J refused permission to apply for judicial review on 6 December 2023.
• High Court, Administrative Court — Lang J had earlier refused permission on 30 March 2023.