ON APPEAL FROM THE HIGH COURT OF JUSTICE
KEITH J AND HHJ LANGAN QC
(sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE RIMER
| Bijan Parsipoor
|- and -
|The Secretary of State for the Home Department
|Sardar Ahmed Salih & Shelan Reza
|- and -
|The Secretary of State for the Home Department
Julie Anderson (instructed by the Treasury Solicitor) for the Respondent
Hearing date : 10th February 2011
Crown Copyright ©
Lord Justice Pill :
"Accordingly, unless the parties can agree an appropriate consent order in the light of this note, the cases will be listed for hearing on 23 April, when I shall make such orders for their disposal as I think are appropriate."
". . . appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so."
Keith J directed:
"For these reasons, these cases should be listed for disposal tomorrow, unless in the light of this note the parties can agree on the terms of a consent order disposing of the cases."
It was accepted that listing for disposal is a formality and does not include a right to an oral hearing.
"Both parties have 14 days following receipt of the transcript to make written representations as to whether the case should be disposed of or proceed to a full hearing.
Representations to be considered by a single judge on the papers."
"The application for an oral hearing is refused. Both claims for judicial review are dismissed."
He stated that he agreed with Keith J "that this case is now academic and that this is not an appropriate case for the court to exercise its discretion to permit such a case to proceed".
"However, it seems to me that the decisions in respect of which I have granted permission to appeal raise an issue as to the procedure adopted by the Administrative Court which should be addressed by the Court of Appeal."
The application for permission to appeal against the order of Judge Behrens on the substantive legal issue was adjourned pending the decision in Kiana which is subject to appeal to this court. The application can subsist only if the present appeal succeeds. Stanley Burnton LJ plainly had in mind that permission should be granted to challenge the refusal of an oral hearing before the claims were finally decided and Miss Anderson has not argued otherwise.
". . . neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed."
The draft order which accompanied the application did, however, also request that the hearing on 23 April be vacated and the cases listed for disposal. It was requested that the application should be considered without a hearing. The application was made on the form appropriate for applications under CPR 23.
"The court may decide the claim for judicial review without a hearing where all the parties agree."
The appellants did not agree to the claim being decided without a hearing and they were entitled to a hearing, Mr Westgate submitted. The rule reflects the fundamental right to an oral hearing of a claim in court before its final determination.
"A further fundamental common law principle is that trials should be conducted in public, and that judgments should be given in public."
Considering the inherent jurisdiction of the court to develop the common law so far as its procedures are concerned, Lord Neuberger cited Lord Denning MR in Grosvenor Hotel, London (No.2)  Ch 1210, 1243C. Lord Denning stated that the Rule Committee:
"Can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land."
Lord Neuberger added that the course proposed by the defendants in Al Rawi would involve:
"Not merely altering the rules of evidence: it would involve altering what Lord Denning MR called 'the ordinary law of the land,' namely . . . fundamental principles of the law of England and Wales."
"The court may deal with an application without a hearing if
(a) the parties agree as to the terms of the order sought;
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate."
The court was entitled to make the orders in the present case in exercise of the power in r 23.8(c). Miss Anderson accepted that if she was wrong about the construction and effect of r 54.18, the court could not dismiss the claim for judicial review under an inherent jurisdiction.
"We turn to the indirect route to CPR 3.3(5). We note at the outset that it is for the court to decide whether to deal with an application without a hearing: "the court may deal with an application…" (CPR 23.8). In considering the scope and meaning of CPR 23.8, we bear in mind two factors. First, generally speaking, there are huge benefits in disposing of routine applications without a hearing. The need to conduct litigation efficiently and proportionately requires that, so far as practicable, applications should be disposed of without a hearing. Routine case management decisions are obvious candidates for such treatment. Secondly, if it were decided by this court that an applicant cannot, as a party affected by an order, invoke CPR 3.3(5), but is obliged to appeal if he wishes to challenge an order made without an hearing, that would deter applicants from asking for their applications to be disposed of without a hearing. We say this because it is necessary to obtain permission to appeal, and it might be difficult to persuade the court to grant permission in many cases, since most decisions made without a hearing would be likely to involve an exercise of discretion, which would be inherently difficult to challenge on appeal."
Dyson LJ added:
"33. CPR 23.8(c) on its face appears to cover any situation where, regardless of what one or more of the parties may say, the court does not consider that a hearing would be appropriate. In other words, this gives the court the jurisdiction to dispose of any application without a hearing.
34. Why should CPR 23.8(b) and (c) not be construed in this way? A possible concern is that, if CPR 23.8 is so construed, there is no express provision in the rules or the practice direction to prevent an unsuccessful applicant from asking the court to reconsider the order it made on paper, rather than appeal. In our view, there is nothing objectionable in giving any party affected by an order made without a hearing the right to apply to have it set aside, varied or stayed, whether the applicant requested a hearing in the first place or not. This accords with standard practice referred to at para 24 above and reflects the fact that efficient and proportionate case management often requires that orders be made on paper, but recognizes that a party may be able to put his case more persuasively at a hearing. We can find nothing in this practice which casts doubt on what we consider to be the natural construction of CPR 23.8."
"On receipt of a without notice application with a request for the matter to be disposed of on paper, the court should consider whether it is appropriate to dispose of the matter without a hearing. In our view, there is a danger in dealing with important applications on paper."
"the central place accorded to oral argument in our common law adversarial system. This I think is important because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the Judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it."
Keene LJ stated, at paragraph 47:
"One important factor which exists both at a renewed application hearing [for permission to appeal in a case of judicial review] and at a substantive appeal hearing is the benefit enjoyed by the court of listening to oral argument. This is a fundamental part of our system of justice and it is a process which as a matter of common experience can be markedly more effective than written argument."
"In the determination of his civil rights and obligations, . . . everyone is entitled to a fair and public hearing . . ."
Mr Westgate stated in terms that it was not necessary to rely on article 6 and the present case turns on the scope of the CPR, particularly r 54.18. Miss Anderson relied on her construction of r 54.18 and the power of the court to act of its own initiative without an oral hearing conferred by r 23.8.
Lord Justice Lloyd :
Lord Justice Rimer :