Thomas Roe KC (instructed by Hausfeld & Co LLP) for the Claimant.
MR JUSTICE FORDHAM:
Introduction
This judgment is about cost capping orders (CCOs) in judicial review. It is a speedy sequel to my judgment [2023] EWHC 1616 (Admin) (29 June 2023), which ended with my announcement that I was going to Order a reciprocal costs cap, applicable to both parties, set at 40% of the funds raised by the APP Group for this claim (currently £101,130); and I was going to extend time for the Defendant’s Detailed Grounds of Resistance and Evidence to 29 September 2023. Having exhausted the time available in the one day allocated for arguments and rulings, I said I would give my reasons in writing for these decisions, and the decision I need to make about joinder of an individual co-claimant. I told the parties I would do this, in a second judgment which would be circulated in draft, with a truncated timetable for corrections, and then handed-down virtually in the usual way. Here it is.
CCOs
The criteria which govern the judicial review Court’s jurisdiction to grant a CCO in non-environmental cases are set out in the Administrative Court Judicial Review Guide 2022 at §9.8. They derive from the Criminal Justice and Courts Act 2015 ss.88-89 and CPR46.17 to 46.19. I have read and considered them in full and the sequence of questions that they raise. I do not propose to block and paste them into this judgment. The purpose of the CCO regime is identified in the commentary in the White Book 2023 Vol.2 at p.2747: CCOs are reserved for cases where there are serious issues of the highest public interest, in cases granted permission for judicial review, which would otherwise not be able to be taken forward. The pre-existing common law principles were identified and applied in R (Corner House) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600 (at §§74-76 and §§136-145) and were recently discussed by Lord Sales and Lord Hamblen in Responsible Development for Abaco Ltd v Christie [2023] UKPC 2 [2023] 4 WLR 47 at §§80-85.
Preconditions
There are prescribed preconditions which need to be satisfied. The APP Group has made an application (s.88(4)) and the specified information has been provided (s.88(5)(a) and CPR46.17(1)(b)). I cannot accept Mr Coleman KC’s suggestion of non-compliance, raised for the first time at the hearing. I referred in my first judgment to the snapshot of annual income £15,952.60 in 2022. The evidence describes how that is needed by the non-profit secretariat to pay salaries, and the donations on which the APP Group relies for its workstreams. There is no undisclosed pot of gold, as was confirmed on instructions. I am satisfied, based on the evidence of Ms Buchanan – which Mr Coleman KC rightly did accept – that the APP Group would withdraw from the claim in the absence of the CCO (s.88(6)(b)). I am also satisfied – notwithstanding Mr Coleman KC’s contrary invitation – that the APP Group would be acting reasonably in doing so (s.88(6)(c)). A further precondition is that permission for judicial review has been granted (s.88(3)).
The first big issue of controversy is whether these are “public interest proceedings” (s.88(6)) applying the criteria (s.88(7)), informed by the prescribed mandatory relevancies (s.88(8)). I agree with Mr Roe KC that they are. There must be an “issue” which is “of general public importance”. I wonder whether the Corner House first “matter of general public importance” – the central merits question about corporate bribery-related transparency in obtaining export credit guarantees (§137) – would now fall within this, as an “issue” which is “the subject of the proceedings” as a means of “resolving it” (s.88(7)). That had really been the concern of the High Court Judge in that case (see §139), since the actual issue in the judicial review was a context-specific consultation point. I wonder too whether the required “issue … of general public importance” (s.88(7)(a)) and the relevancy “point of law of general public importance” (s.88(8)(c)) really come down to the same thing. Mr Coleman KC submitted that the judicial review issues – reasonableness and fairness – are not issues of “law” (s.88(8)(c)) but are issues of context-sensitive application of public law principle. But so then was the other “matter of general public importance” – the consultation issue – in Corner House (§140). That was the issue which sufficed to be an issue “of general public importance” (§74), and this is the phrase used by Parliament as the precondition (s.88(7)(a)). In any event, I do not think Mr Coleman KC is correct. All judicial review grounds do raise issues of “law”: cf. James v Hertsmere Borough Council [2020] EWCA Civ 489 [2020] 1 WLR 3606 at §§18, 31.
I am satisfied that “the public interest requires” the issues in this case to be resolved, to which end the proceedings are appropriate (s.88(7)(b)(c)). I explained in my first judgment (§§15-16), in the context of standing, that the APP Group is acting so as to represent the public interest; and it is doing so as a group of Parliamentarians with a directly-relevant foundational purpose and a role, as they see it, in promoting policy outcomes in the interests of customers and the public interest.
In my judgment, the issues in this case – whose resolution is required in the public interest – are issues “of general public importance”. The case will determine this question: whether a maintained merits-disagreement was a legally sufficient reason not to accept a key evaluative conclusion of an independent review. The case will determine this question: how the standards of reasonableness and legally adequate reasons operate in such a context. As to that, this was not an adjudicative tribunal (cf. R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §§59, 66, 130, 145). But the cases about “clear and cogent reasons” for a departure are not restricted to adjudicative tribunals (cf. R (A) v Newham LBC [2008] EWHC 2640 (Admin) [2009] 1 FCR 545 at §§61-63 and 71). The questions to be determined arise in an important context, which adds force to their importance. This was a regulatory intervention on an issue, so important that its subject-matter was the foundational purpose of the APP Group. The approach to it was so important as to call for a 2½ year Independent Review costing £8.6m. This was a situation where 34% of cases (10,604 sales) had been excluded from Scheme eligibility, with redress implications estimated at £350m to £3.2bn. There is, in principle, an interrelationship between (i) an issue of general public importance whose suitable resolution is required by the public interest and (ii) the question of significant direct effects of judicial review proceedings on large numbers of people. That interrelationship is reflected in the statutory relevancy (s.88(8)(a)(b)) which informs the answer given to the statutory test (s.88(7)). I also think there is a procedural issue of general public importance (cf. Corner House §140). It is whether the Authority – anticipating calls for action – could fairly organise the procedural sequence of events so as to exclude the informed opportunity for voices to be heard, in an attempt to persuade, while its mind is ajar. Indeed, the greater the depth of Mr Coleman KC’s submissions on his contract and legitimate expectations points – which will doubtless feature at the substantive hearing both in relation to the substantive ground and materiality – the more convinced I became that these too involve extremely important issues of law. Has this regulator really contracted-out, or engendered a legitimate expectation, as to its ability to take any further regulatory action? Has it done this, in relation to the very cases which were being excluded as ineligible from a redress scheme? Could it even do that, and be understood to do that, given its statutory functions? These are, in my judgment, themselves issues of general public importance. All of this goes far beyond the recognised, and important, general public interest (Abaco §73) in upholding the rule of law and ensuring that public bodies comply with their obligations under public law.
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