A balancing act
Date: 10 April 2009
Authors: David Lock
Issue: Vol 159, Issue 7364
Categories: Features, Public
Although judicial review applications are a special form of litigation, CPR 25 applies in the same way as it applies to other species of litigation and the full range of interim remedies is potentially available. However special considerations apply to the grant of interim injunctive relief where the dispute involves a conflict between private and public interests, especially where damages are not a primary remedy for either party.
Starting point for seeking interim relief
The House of Lords in Reg v Transport Sec, Ex p Factortame Ltd (No. 2) [1991] 1 AC 603 confirmed that the American Cyanamid approach was the starting point for interim relief in public law cases as it is in private law litigation.
Hence the first question is whether the claimant has raised a serious issue to be tried. There is a presumption of validity in the lawfulness of the actions of public bodies. It is for the claimant to displace the presumption. However if a claimant gets over the hurdle of showing that there is a serious issue to be tried, the claimant can seek the full range of interim remedies under the CPR.
The next step in the American Cyanamid test is to ask if damages are an adequate remedy for either party. This raises complications because, as Lord Goff noted in Factortame No 2: “in this country there is no general right to indemnity by reason of damage suffered through invalid administrative action.” Thus, even if the claimants successfully show that a public body has acted unlawfully, the claimant may well suffer loss for which no compensation is available. It is not so much the case that “damages are not an adequate remedy” but simply that no damages can be claimed.
But, as Lord Goff also noted: “Conversely, an authority acting in the public interest cannot normally be protected by a remedy in damages because it will itself have suffered none.” The court therefore often jumps straight to the final stage of the American Cyanamid tests, namely to examine the balance of convenience.
In assessing the balance of convenience Lord Goff recognised the wider public interest in upholding the decisions of public bodies. Issues of “considerable weight” needed to be put into the balance before an injunction could be granted. The judge ruled out the idea of a special merits test in judicial review cases but also said that granting an injunction to suspend a law was an “exceptional course”. He did, however, commend courts to take the course which provides the “best prospect that eventual injustice will be avoided or minimised”.
The public interest, and the interests of others who wish to uphold the legality of the action of the public body, comes into play when the court looks at the strength of the case needed to support an application for interim relief. In R v National Trust for Historic Places Ex parte Scott [1998] 1 WLR 226, [1998] 2 All ER 705, Mr Justice Tucker said: “I do not regard it as so strong a prima facie case as to justify the granting of interim relief”.
Which comes first—interim relief or permission?
No application for judicial review can proceed without the grant of permission. Some claimants seek to persuade a judge to grant permission as a first step before granting interim relief. However, there is now clear authority that an application can be made for interim relief before the court has granted permission. See M v Home Office [1994] 1 AC 377, [1993] 3 All ER 537.
In Karkut & Ors, R (on the application of) v London Borough of Lewisham [2005] EWHC 354 Collins J said, following Webb v Bristol City Council [2001] EWHC Admin Civ 696, that the better course was to for a judge to consider granting interim relief before considering the issue of permission. He said it was better to wait the service of the defendant's acknowledgement of service before deciding the issue of permission but that this should not preclude the claimant seeking interim relief in the right case.
On notice or ex parte?
It is almost always right to put the public body on notice of the application (see R v Metropolitan Police Force Disciplinary Tribunal ex parte Lawrence (The Times 13 July 1999). Other than an application to hold the ring for a short period in a very urgent situation, it is difficult to envisage any circumstances in which the public body should not be given the chance to make representations before substantive interim relief is granted.
In social welfare and housing cases, interim remedies appear to be granted more readily than in other cases. One reason may be that, in such cases, decisions of public bodies have less impact on third parties than in other areas of public law practice. Thus the court has been prepared to make an interim order to suspend the decision to withdraw benefits from asylum seekers and often grants permission to restrain an allegedly unlawful eviction or a failure to provide social services support.
However, the court is much more wary of intervening on an interim basis to hold the position where other persons may rely on the decision (see R v Audit Commission ex parte Ealing Borough Council [2002] EWHC 2852).
An expedited hearing?
One possible response by the court to an interim application is for the court to order an expedited hearing of the main claim (see R v (British Aggregates Associates) v HM Treasury [2002] EWHC 926, [2002] All ER (D) 161 (Apr)). Alternatively, where the issue between the parties is a discrete dispute on the law, the court may use the interim hearing as the opportunity to try that issue and thus dispose of the claim.
The cross undertaking in damages?
A cross undertaking in damages will be usually required to support an application for an interim order under CPR 25. However it is slightly different in judicial review cases because the defendant, as a public body, may well suffer no financial loss if the decision is reversed. However the litigation may well adversely affect other people or companies who may seek to intervene in the case as Interested Parties.
If an individual claimant is seeking to litigate an issue of general public importance there is scope for the court to dispense with the undertaking (see Arden LJ in R (Goldsmith) v Servite Housing and another (2000) 3 CCLR 354). In other cases an undertaking in damages can be required specifically to protect the position of Interested Parties because the court can order a damages inquiry even if the loss is not strictly caused by a legal wrong.
The overall position is that the requirement to call for an undertaking in damages is a matter within the discretion of the judge (see R v Inspectorate of Pollution ex parte Greenpeace [1994] 1 WLR 570, [1994] 4 All ER 321) but that absent exceptional circumstances the judge will almost always require the undertaking to be provided.
It seems likely on this, that a party bringing a judicial review claim, which had the benefit of a protected costs order, would be able to apply for an interim order without having to give an undertaking in damages.
Claimant does not apply for interim relief
The existence of unresolved judicial review proceedings can cause significant problems for a public body even where a party does not make an application for interim relief. In R (on the application of the Transport and General Workers Union and another) v Walsall Metropolitan Borough Council [2001] All ER (D) 85 (Jun) a council decided to press ahead with a decision to award its catering services to an outside contractor, M Ltd, instead of the authority's internal caterers despite the existence of an unresolved judicial review claim. Relief was granted to quash the contract because, amongst other matters, the contract was signed after the letter before action was sent and thus “both the council and Martins went into it with their eyes open”. No criticism appears to have been made of the failure by the union to seek interim relief to prevent the contract being signed.
A failure to seek interim relief can be a factor in the final exercise of discretion in the case. In R (on the application of Gavin) v Haringey London Borough Council [2003] EWHC 2591 (Admin), [2003] All ER (D) 57 (Nov) the claimant challenged a grant of planning permission but did not seek interim relief. One of the factors which affected the final decision by Mr Justice Richards to refuse relief was the delay and the prejudice to the landowner who had the benefit of the planning permission. Hence indirectly it appears that the claimant was prejudiced in the final outcome by its failure to apply for an interim injunction.
Practical issues
Judicial review is a paper–based process and the applications for interim relief are usually made on paper in the first instance. The papers are lodged at the Administrative Court with a request that the case be referred to a judge. The standard form asks the time period within which the case must be referred and states “Hours/Days”. If an urgent decision is required then, with a persistent solicitor who is able to establish a relationship with the court staff, it is possible to get the papers referred to a judge within a very short period—and sometimes within a matter of hours.
The judge will generally—on paper—make one of three decisions, giving short written reasons for the decision to:
● grant the application;
● refuse the application; or
● order that the matter be referred to an urgent oral hearing.
If the decision has any substance at all, it is preferable that the matters are dealt with at an oral hearing with both parties represented. In R v London Boroughs Transport Committee ex parte Freight Transport Association [1989] COD 572 the court said that it was “highly desirable that interim remedies [are] dealt with at an oral permission hearing with notice to the defendant”. If an order is made without the defendant being present or being put on notice, the defendant has the right to apply to have the order set aside on its merits without having to show a change of circumstances (see Webb v Bristol City Council [2001] EWHC Civ 696).
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