- If an application for permission for judicial review is considered totally without merit, the claimant loses the right to oral hearings in the High Court and the Court of Appeal for the reconsideration of permission.
- The Court of Appeal has held that "totally without merit" means simply "bound to fail"
The Court of Appeal in R (Grace) v Secretary of State for the Home Department  EWCA Civ 1091 has provided guidance for High Court judges when considering whether to classify an application for permission for judicial review as totally without merit.
To apply for judicial review, a claimant has to seek the permission of the High Court (or the Upper Tribunal, as applicable). A High Court judge looks at whether the claimant has an arguable case for judicial review, which justifies full investigation. The permission process therefore acts as a form of filter before a full hearing.
Permission is usually assessed on the papers alone. If rejected on the papers, a claimant may apply to have an application reconsidered at an oral hearing. If permission is refused again at the oral hearing, a claimant can apply to the Court of Appeal for permission to appeal that decision.
However, under recent reforms to judicial review procedure, if the High Court judge reviewing the papers for the first time finds an application to be totally without merit, the judge must record this fact in the decision on permission. As a result, a claimant is then unable to request reconsideration at an oral hearing in the High Court. The right to apply for permission to appeal the decision to the Court of Appeal remains, but that application is still determined on paper only. This effectively halves the number of opportunities that a claimant has to persuade a court to grant permission.
Grace was a Jamaican national who had been in the UK unlawfully for 10 years before applying for leave to remain. Her application was rejected and she sought permission to apply for judicial review of the Home Secretary's decision. The High Court judge considered her claim to be totally without merit, and Grace was therefore prevented from repeating her application for permission at an oral hearing.
Meaning of "totally without merit"
Grace argued that there should be a high threshold for a case to be recorded as totally without merit, as otherwise a genuine, non-abusive claimant might be prevented from making oral submissions. The test proposed by Grace was that claims should only be classified as totally without merit if they were so misconceived that a civil restraint order would be justified if the claim was repeated.
Nonetheless, the Court of Appeal held that the meaning of "totally without merit" was simply that a case was "bound to fail".
The Court of Appeal held that the purpose of the "totally without merit" reform was to help to deal with the significant increase in the number of judicial review claims, and the burden that this represented for public authorities and the courts. The judges did not find the meaning of the "totally without merit" test to be connected to the threshold for a civil restraint order or to the prevention of repetitive claims. It was held that the interpretation suggested by Grace would render the test ineffective.
The Court of Appeal did recognise that a claimant was able to add persuasiveness to a case at an oral hearing. Nevertheless, the judgment reiterated that the "totally without merit" designation would not be used unless the High Court judge was confident that a judicial review claim was bound to fail. The judges also noted that the classification of a case as totally without merit did not prevent an appeal on the papers to the Court of Appeal. The fact that a Court of Appeal judge, with greater experience and seniority, would then review the case with a fresh perspective, was considered sufficient protection for judicial review claimants.
It was in light of these two safeguards that the Court of Appeal found that its interpretation of "totally without merit" did not detract from the important constitutional role of judicial review claims in keeping public authorities in check.
The guidance of the Court of Appeal in Grace has provided useful clarification of the "totally without merit" test, by setting out a simple interpretation of the concept.
The Government's numerous recent, and proposed, reforms to judicial review currently aim to reduce the number of judicial review claims generally. There is particular focus upon those claims that are unmeritorious or an abusive use of judicial review as a political tool. We have also seen further streamlining of the judicial review process through the diversion of all immigration cases from the Administrative Court (part of the High Court) to the Upper Tribunal, and the creation of a new Planning Court to deal with judicial reviews of planning matters.
The clarification of the meaning of "totally without merit" in the Grace decision may encourage the use of this classification where appropriate, and may serve to reduce the burden of permission applications upon the High Court, and the Court of Appeal. The decision is therefore in line with the general trend in judicial review and the changes to the Administrative Court. This may be good news for 'non-abusive' users of the Administrative Court, who can expect to have their claims dealt with more expeditiously.