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12th January 2021

When is judicial review over? The finality of legal proceedings

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The Court of Appeal has recently emphasised the importance of finality in judicial review proceedings and that unsuccessful parties, having failed in the High Court and refused permission to appeal, need to accept defeat.  

Permission to Appeal to the Court of Appeal

In Wingfield, R (on the application of) v Canterbury City Council & Anor [2020] EWCA Civ 1588 the claimant had applied to the Planning Court to quash two planning decision of Canterbury City Council. The case was considered and dismissed by Lang J who also refused the claimant’s application for permission to appeal to the Court of Appeal. Undeterred the claimant applied direct to the Court of Appeal under Civil Procedure Rule (CPR) 52.30 to re-open and re-determine the decision for permission to appeal the Planning Court decision of Lang J. Such permission to appeal was refused by Lewison LJ. Again, undeterred, the claimant applied again to the Court of Appeal under CPR 52.30 to re-determine the decision for permission to appeal.

The Court of Appeal in the strongly worded judgement of the Senior President of Tribunals, Coulson LJ and Andrews LJ refused this second application, noting it was misconceived, and emphasised that unsuccessful parties need to accept when a judicial review has come to an end. Repeated applications for permission to appeal will likely only waste the important time and resources of the Court of Appeal against public interest.

The following five principles were set out in relation to when a decision to refuse permission to appeal will be overturned by the Court of Appeal under CPR 52.30:

  1. A final determination of a refusal of permission to appeal will not be reopened unless the circumstances are exceptional;
  2. There must be a powerful probability that a significant injustice has already occurred, and that reconsideration is the only effective remedy;
  3. The paradigm case is fraud or bias or where the judge read the wrong papers;
  4. Matters such as the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large or the point in issue is important, are not of themselves sufficient to displace the fundamental public importance of the need for finality; and
  5. There must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined.

In refusing the application in this case, Coulson LJ and Andrews LJ found that the above principles had not been satisfied by the claimant. Her options to continue the judicial review had ended and she needed to accept that.

Lesson:  If you are unfortunately unsuccessful in the first instance before the Planning Court, and then unsuccessful in applying for permission to appeal such decision to the Court of Appeal, it is important to appreciate that you have most likely exhausted your legal rights of challenge. It is extremely difficult to successfully re-open the refused permission to appeal and will likely only draw the annoyance of the judges sitting on the Court of Appeal.  

If you have any questions in relation to this article the Planning and Environment Team at Hewitsons LLP will be happy to assist.