Care North East, R (on the application of) v Northumberland County Council

At the permission stage of judicial review, the court should apply the conventional and modest threshold of arguability. A claim should not be dismissed where each ground is properly arguable and no decisive answer defeats it at that stage. Discretionary bars, including delay, utility and the statutory materiality test, may require full substantive consideration. Where the issues have been extensively ventilated and expedition is appropriate, the court may retain the case, direct a rolled-up hearing and preserve the benefit of the preparatory work already undertaken.

The claimant sought judicial review of decisions by Northumberland County Council on four grounds. After extensive oral and written submissions, Fordham J considered whether the claim should be dismissed at the permission stage or proceed to substantive determination.

The court concluded that all four grounds crossed the arguability threshold. Issues concerning delay, utility and statutory materiality required full consideration rather than summary dismissal. The central procedural question was whether the judge should retain the case and direct an expedited rolled-up hearing.

1. Permission-stage threshold. The court applied the conventional and modest threshold of arguability. Each of the four grounds was arguable, and there was no knockout answer warranting dismissal of the claim at that stage.
2. Discretionary bars and materiality. The court held that the arguments concerning delay, utility and the statutory materiality test required full and substantive consideration alongside the judicial review grounds. Although the court considered whether it was highly likely that the outcome would not have been substantially different absent the alleged unlawfulness, it could not reach that conclusion at the hearing.
3. Case management. Consistently with the overriding objective and the efficient use of judicial resources, the judge retained the case and decided to hear the substantive claim himself. The early hearing had enabled the arguments to be ventilated, preserving its value while the issues remained fresh.
4. Order. A rolled-up hearing was directed. Expedition was granted. The parties were given staged deadlines for evidence, skeleton arguments and further authorities, with the substantive hearing expected to take place on 17 and 18 April 2024. A costs order previously made on the papers was placed in abeyance.

Not an appeal. The judgment records procedural directions in the judicial review proceedings.