EPX, (R on the application of) & Anor v Secretary of State for Defence

A judicial review claim concerning superseded policies is not necessarily academic merely because the policies have been replaced. A claimant may remain entitled to determination of a claim under Human Rights Act 1998, section 7(1)(a), concerning past violations of Convention rights. The discontinuance of the impugned conduct does not retrospectively extinguish that claim.

Even where a claim has become academic, the court may permit it to continue in exceptional circumstances. The principal consideration is whether there is a wider public interest in resolving the issues, particularly where many people may have been affected and the court will already determine a related challenge to current policies.

The claimants, anonymised as EPX and PGH, were serving or former members of HM Armed Forces who alleged that policies regulating communications with the media and Parliament prevented serving personnel from publicly discussing experiences of rape, sexual assault, harassment and bullying without prior Ministry of Defence approval.

They obtained permission to pursue judicial review of the original policies on grounds including illegality, irrationality, incompatibility with Convention rights, victimisation and breach of the public sector equality duty. The policies were later revoked and replaced. The Secretary of State applied to vary the directions and sought, in substance, to avoid responding to the challenge to the original policies on the basis that it was academic. The issue was whether that challenge should proceed to determination.

1. Application dismissed. The Secretary of State’s application was in substance an attempt to secure summary disposal of the substantive challenge to the original policies, rather than a mere case-management variation.
2. The claimants’ claims under arts 8, 10 and 14 of the ECHR, brought pursuant to sections 6(1) and 7(1)(a) of the Human Rights Act 1998, were not academic. They alleged that the original policies had unlawfully been applied to them while in force. The court held that a historic violation of Convention rights can ground a claim even where the public authority has discontinued the conduct. The question remained whether the original policies were unlawful at the relevant time and whether the claimants’ rights had been violated.
3. The lawfulness of the new policies did not answer the separate question concerning the original policies. The Secretary of State’s response, which failed materially to address Grounds 1 to 4 and the alleged unlawfulness of the original policies, did not provide a proper basis for disposing of the claim.
4. Alternatively, if the claim had become academic, there was a good reason to allow it to proceed. Applying the approach identified in Caterpillar (Xuzhou) Ltd, R (on the application of) v Secretary of State for Business and Trade & Anor [2025] EWHC (Admin) 1124, the court considered the wider public interest. The evidence demonstrated that many serving personnel, particularly victims of sexual assault and harassment, could be affected by the policies and that the issues extended beyond the immediate parties.
5. The court also considered that judicial resources would be spent in any event on the challenge to the new policies, and determining the legality of the original policies would not substantially increase the time estimate. Further directions were made for the claim, with a substantive hearing in the Term beginning 1 October 2025. The application was dismissed with costs.

This was an interim application in first-instance judicial review proceedings. Permission to pursue judicial review was granted by Cavanagh J on 20 December 2024. The High Court dismissed the Secretary of State’s application and directed that the substantive claim proceed.