Two new obstacles to public law challenges

There are two conflicting approaches to remedies in judicial review.
The first is that the question of whether to grant a remedy (and if so, what type) is always a matter for the discretion of the judge. The second is that the rule of law requires some appropriate remedy always be given when a justiciable error on the part of a public authority has been established by someone who had standing
to bring a claim.

The first approach is the traditional attitude of the courts of England and Wales. The second has some support in the approach of the Court of Justice of the European Union (CJEU). In Cases C-6 and 9/90 Francovich v Italy, the CJEU recognised 'the obligation to nullify the unlawful consequences of a breach of [EU] law'.

In one of the first decisions under the primacy of Lord Bingham of Cornhill (Berkeley v Secretary of State for the Environment [2001] 2 AC 603), the House of Lords held that there was only limited discretion not to quash decisions which were in breach of domestic law, and there was even less discretion where there was a breach of EU law. The fact that, as there had been a six-day public inquiry, the decision about Fulham FC's redevelopment would have been the same even with compliance with the Environmental Impact Assessment (EIA) Directive was not a basis for refusing relief. Thereafter, where a justiciable error could be established, a remedy was usually granted.

Supreme Court decision

First, Lord Carnwath persuaded the Supreme Court in R (Champion) v North Norforlk DC [2015] UKSC 52 to hold as part of its decisive reasoning that 'it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice'.

All depends on whether the court considers that in practice the challenger has been able to enjoy the substantive benefits which the relevant public law provisions are intended to provide. The Supreme Court seemed to require a challenger to show that they were substantially prejudiced by demonstrating that the decision would have been different if there had not been the justiciable error. Lord Carnwath went on to encourage courts to take this into account at the permission stage.

This obstacle to relief may not be compatible with EU law. In Case C-72/12 Altrip v Land Rheinland-Pfalz, the CJEU made clear that a court could not place a burden of proof on a challenger as to a different outcome. They had to have relief unless the court had material which enabled it to conclude that the decision would have been no different.

Lord Carnwath also questioned the approach laid down in R v London Borough of Hammersmith and Fulham (ex parte Burkett) [2002] UKHL 23 as to the moment at which time starts to run in challenges to planning permission.

New statute

Second, parliament has embodied in statute a further difficulty for challengers through section 84 of the Criminal Justice and Courts Act 2015, which inserts a new section 31(2A) into the Senior Courts Act 1981. The High Court is now prohibited from granting relief or costs in judicial review if it considers that it is 'highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred', unless it declares that there are 'reasons of exceptional public interest'.

The practical consequence for challengers is that they should present to the courts evidence setting out the significance of justiciable errors and why they could have made a difference to the outcome. Defendants and their allies should, if they can, present evidence to the opposite effect.

A tip for challengers: In the heart of the judge through your witness statements. Treat the production of witness statements showing why the court should exercise its discretion in your favour as an opportunity to focus the court's attention on the substantive non-legal merits of your position.

Robert McCracken QC is barrister specialising in public and environmental law at Francis Taylor Building @FTB_law www.ftb.eu.com