6th December 2022
The Good Law Project has lost another court case.
This was the use by government of WhatsApp, about which there was political controversy.
But.
Towards the end of the judgment there are these two paragraphs (emphasis added):
70. In the light of our conclusions, both the appeal and the Good Law Project’s claim for judicial review should be dismissed. We should, however, record that when permission to apply for judicial review was granted the Good Law Project had made a serious allegation (based on claims from the former Chief Advisor) that fake meeting records and notes were being made. Such conduct, if proved, would have been unlawful on a number of different public law grounds. The conduct was not, however, proved and the allegation was dropped without clear notice to the Ministers or to the court, as appears from [15]–[18] of the judgment of the Divisional Court.
“71. Thereafter the focus of the claim shifted to the breach of the eight policies. It was not, however, clear, at least until the draft order was produced on the second day of the appeal, exactly what relief was being sought. It is true that the particulars of the policies and the evidence suggesting breaches of the policies were not available at the time that the claim form and statement of facts and grounds were prepared. It is, however, also right to note that the policies and the evidence about breaches were disclosed by the Ministers and became known during the proceedings. The Good Law Project amended its statement of facts and grounds accordingly. But the claim for relief remained unparticularised in the amended Statement of Facts and Grounds. The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.“
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This is a problem for a great deal of seemingly public interest litigation – and not just with this particular claimant.
(I think the GLP do some good things, though I am not an uncritical fan.)
There is a newsworthy wrong – a public grievance – and so somebody goes to court.
It is almost as if going to a court is an end in and of itself.
Litigation as theatre, or as therapy, or as a proxy for politics.
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But.
From a practical lawyers’ perspective, that approach is back-to-front.
As a trainee and as a junior litigation solicitor, I was taught to always think backwards from the remedy.
The primary questions were: What is the actual remedy your client is seeking? And how do you go about obtaining that remedy?
Turning up to court with a sense of “what do we ask for now?” means, in my view, there has been a failure in litigation tactics or strategy.
Of course: sometimes where you can show there is a plain wrong, a judge may come up with their own remedy.
This is the sort of thing Denning used to do.
But a claimant or applicant must always be conscious as to what they are actually asking for from a judge.
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This is not a problem about a particular claimant.
It is instead a wider problem about politically charged, crowd-funded and/or pressure group brought claims.
“We think this is wrong, so we are going to court!” is not sufficient.
What are you going to court for?
What are you asking the judge to do?
For as the judge here pointed out: “The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.”
Public outrage does not mean, by itself, that a judge can grant a remedy – or even find any legal breach.
It is not always the case that where there is blame there is a claim.
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Very important point being made in this blog and it leads to lots of other questions. There are issues here that ought to have been resolved through political means but simply are not. Resorting to cases of this kind is evidence of failure in the political process, itself.
I would be very interested to hear from DAG and others what kind of remedies are possible? I learned through painful experience (pitching for business) always to ask for something the client CAN say yes to. Always remove any obstacle that prevents them from accepting your proposal. It seems a similar issue exists here. The GLP has a real problem, not unrelated to its charismatic but think skinned leader, in which the theatre of litigation indeed seems to be the primary motive.
If this is removed from the equation, what is left? In a system where the political process is not giving us remedies and its basic rules and not always followed, perhaps self-sacrificial court action is all that’s left. Can the litigant ask, for example, for a minister to be dismissed for breaking the rules? Or must they have enough evidence to prove criminal wrong doing? If they have the latter all is resolved. If they don’t it suggests there is no purpose to this litigation at all.
Would love some guidance on this.
For me, and I suspect for many who support the Good Law project, they probably feel that there simply is no political recourse. I live in a constituency with a huge majority, and even the party way behind in second place has very similar policies on the issues that are most important to me. So where is my voice?
Meanwhile any dodgy geezer who bungs a few quid in donations seems to get policy a la carte.
A bit unfair to Denning’s originality – he tended to create new substantive law rather than new remedies. When county court judges in recent memory tried to do the same the CA was not amused.
Not “unfair”, a “bit” or otherwise. Denning’s contribution to the development of equitable remedies in commercial and property matters was profound.
I only formally studied law in Ireland, and even we had to learn about High Trees…
https://en.wikipedia.org/wiki/Central_London_Property_Trust_Ltd_v_High_Trees_House_Ltd
There is I think a comparable issue in contract law. I can’t recall the pithy version, something like “every obligation needs a consequence for breach”, if you want to keep the contract intact but encourage compliance.
Seems to me that if there is a public law obligation without a realistic remedy, we are in performative law territory. Perhaps we need personal consequences for eg failing to comply with public records obligations.
Ubi jus ibi remedium
Thank you very much for analysing and clarifying this.
“I think the GLP do some good things, though I am not an uncritical fan.”
Precisely my position… Although I should add that you need to be perfect if you want to avoid my criticism altogether.
My biggest beef is not with GLP themselves, but of their acolytes: any legal issue of public concern and they say “Oh, leave that for the Good Law Project…”
Working backwards, the sorts of remedies that a court can provide in a judicial review case are orders requiring something to be done or prohibiting it, often an order quashing a bad decision and requiring it to be remade; or a simple declaration that an act was unlawful but otherwise letting it lie; and in some cases financial reparation (that is, damages).
So the minimum remedy, and one that should be the easiest to ask for, is a declaration that one or more specific actions was unlawful. From the court judgment, that is exactly what the GLP was seeking here – declaratory relief. But the Court of Appeal has identified an inability to list specific actions at fault – to “particularise” the remedy until a late stage – as being a (ahem) particular problem here.
Is that is intended as guidance to give lower courts wider latitude to dismiss applications for judicial review if they are not sufficiently detailed?
Some statistics on judicial review last year here, at paragraph 8: https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-october-to-december-2021/civil-justice-statistics-quarterly-october-to-december-2021
To put it another way, there are about 6 applications for judicial review every day (broadly, two per day in immigration matters, nearly 4 per day in civil matters, and one every two days in criminal matters). The numbers are down compared to 2020 and 2019. About a half of those cases reached a decision on permission to review within the year, and about a third of the cases were given permission to proceed.
It seems to me this is not an enormous caseload (down 30% from 2019) and the courts are already able to winnow out undeserving cases swiftly enough – typically a decision on permission is made within 3 months, with two thirds turned down at that stage, and the remaining third reaches a final hearing within another 3 to 4 months.
But.
“Declaratory relief” does not really exist by itself. The question is: what do you want the court to declare? And why?
A declaration is a discretionary remedy, so it is not like getting a common law remedy like damages, where quantum can be worked out separately.
A judge is not going to say: “I will give you a declaration, but I do not know yet the content”.
And given that a declaration as to the law can, in certain possibilities, bind other courts/parties, one has to be conscious of the wording and scope of any envisaged declaration, and also one has to understand the consequences of that declaration.
What is to be ‘declared’ is not an afterthought.
That is true, but it’s also not a million steps further than the example you give:
“We think this is wrong, so we are going to court!”
The remedy being sought is “we think this is wrong, so we are going to ask the court to say that it is unlawful”.
The question raised by the Court of Appeal last week is how much detail you have to put in your description of “this” right from the start. As Andrew says (if I understand him correctly), that isn’t really a question of remedy, but a question of pleadings.
Well, all remedies on judicial review are discretionary: the applicant needs to persuade the judge to exercise their discretion. At an early stage no doubt there may be evidential issues in formulating the precise form of the desired declaration until there has been adequate disclosure to identify specific acts that might be in the target zone, but it is not clear to me why the applicant in this case was (it seems) unable to particularise the precise form of their desired remedy until (it appears) a draft order was produced on the second day of the appeal. A tactical mistake perhaps. (I would have expected a draft order to be available before the first hearing – would form part of the pleadings?)
The GLP’s pre-action protocol letter from July 2021 is here: https://drive.google.com/file/d/1PlsggaJR47Sp5GCMyqOr_jkUI_AuDa8X/view
In essence, they were saying that it was unlawful for there to be no proper policy on the use of private email and other private communications systems, and that the evidence suggests such systems are being used in breach of existing law and policy. The court decisions suggest the case evolved significantly from July 2021.
The psychology is clear: “judge, pronounce those people in the wrong”. So I would argue that the psychology (and possibly therefore the motivation for proceeding) is clear, although the law may not be intended for this purpose.
The same psychology factor applies to the recent prisons blog post: “authority, punish those bad people”.
The human motivations are relatively transparent. The fact that they may not be intended to apply in the worlds of law and justice is the source of tension.
The answer obvious to me is that the remedy id for the perpetrators to go to gaol for misconduct in public office.
This seems to be a route that GLP don’t want to go down, but this case seems to suggest that they’ve messed up a bit…
I wonder how many of the Tory MPs, Peers and sundry hangers on who have recently been using WhatsApp to keep their communications secret from the general public were themselves complaining about its use (and that of Blackberries) by rioters and ne’er do wells back in 2011.
For some reason, Nadine Dorries springs to mind.
“Litigation as theatre, or as therapy, or as a proxy for politics.”
Cicero would have been a great advocate for the Good Law Project.
Of course, in his day, litigation was the continuation of politics by other means and those who attended the courts expected all parties involved in a case to put on a good show, plenty of rhetoric, interspersed with dollops of pathos, sound and fury.
Winning on dry points of the law was just not playing the game.
Of course, politics back then was a rough old game and critics might even stick the knife into a performer live on stage.
Alternatively the innumerable successful submissions hinging on dry points of law didn’t make it into the copyist’s IN tray, because the copyist’s employer saw no market for them.
Or if he did.. Well, Tom Stoppard put it better than I ever could:-
Jowett: … In other words, anyone with a secretary knows that what Catullus really wrote was already corrupt by the time it was copied twice, which was about the time of the first Roman invasion of Britain: and the first copy that has come down to us was written about 1,500 years after that. Think of all those secretaries! — corruption breeding corruption from papyrus to papyrus, and from the last disintegrating scrolls to the first new-fangled parchment books, with a thousand years of copying still to come, running the gauntlet of changing forms of script and spelling and absence of punctuation — not to mention mildew and rats and fire and flood and Christian disapproval…
(“The Invention of Love”, p. 24.)
I think the main the problem is that the Judges, who are people too with their own human frailties, have taken a dislike to the GLP and their founder.
I do wonder if the GLP are now the right people to bring these claims and whether they would have more chance of success if the GLP and it’s founder was not involved.
Something must be done. This is something. Therefore we must do it.
GLP want the government to be held to account. No one else is willing or able. Judicial review is the only tool they have.
This was nakedly apparent in the women’s state pension age unsuccessful judicial review and appeal (Delve and Glynn v Secretary of State for Work and Pensions) [2020] EWCA Civ 1199. That litigation was backed by a crowdfunding claim promising “full restitution” [of the value of lost years’ pension payments] to supporters, a promise many relied on in unsparing detail in imagining the difference the money would make to their lives. In fact, the relief sought by the claimants’ lawyers came nowhere near fulfilment of any such promise, but was purely declaratory (see paragraph 129 of the judgment). I favour regulation of the prospectus of litigation crowdfunding to minimise the risk of this sort of thing, especially in public law, happening again.