Justice Outside London: Practicalities

  1. Our review of the views expressed and the material provided by those in and concerned with the 4 regional centres is descriptively overwhelming, but in danger of a degree of overkill. It is necessary to look at practicalities.
  2. We shall first examine factors which do or may argue against the proposal for fully operational Administrative Court offices out of London.
  3. We attach as Appendix L a memorandum from Mr Justice Collins, the lead judge of the Administrative Court, Roger Venne, Master of the Crown Office and Lynne Knapman, Head of the Administrative Court Office. They are, of course, the three people in effective charge of the present Administrative Court, and their combined experience of the existing system is greater than any. They do not oppose the possibility of local lodging of claims, but are satisfied that they must be dealt with centrally. Paragraph 2 of the memorandum identified problems otherwise. The potential for the wide application of a decision in an individual case requires central control and co-ordination. What criteria should be applied to determine where a case should be heard? The majority of cases should be heard by nominated judges with collegiate expertise and with experienced help from Lynne Knapman and experienced office lawyers and staff. If lawyers are to be engaged locally it will be an expense. If not, the judge will not be supported. There may be problems in ensuring that the undertakings given on the grant of emergency applications are honoured. With modern technology, case management can and should be undertaken centrally. Criminal cases usually heard by a Divisional Court should normally be dealt with centrally – we have accepted this. But litigants in person are a problem and are likely to try to pursue the same matter in different court centres. The protocol relating to removals would make central control necessary.
  4. Paragraph 3 of the memorandum suggests that the solution for local hearings is the use of video links. Paragraph 5 expresses concerns about deployment and points out that attempts to hear Administrative Court cases on circuit have not been entirely successful. Paragraph 6 asks how paper applications would be fairly allocated without over burdening judges in London with an excess of tedious paperwork. Paragraph 7 suggests that sophisticated technology would be far more cost effective than local hearings.
  5. We acknowledge the persuasive force of some of these points, although not all of them. It is a question whether the intrinsic nature of general judicial review claims is such that, exceptionally of almost all first instance civil litigation, they must be administered and controlled centrally in a single location. We think not. Otherwise, it is a matter of providing sufficient properly trained judicial and administrative resources.
  6. As to whether sufficient administrative resources can and should be provided, this is not a question that is amenable to a judgment by a purely judicial working group such as we are. Subject to a decision to provide the resources, we are quite confident that regional Administrative Court offices with properly trained staff can provide effective administrative control of their cases. There will of course need to be close liaison with the office in London and with other regional offices. But there is no problem with that.
  7. As to judicial resources, our proposal requires (a) one or more nominated High Court judges deployed in advanced and securely available to hear Administrative Court cases during pre-determined periods, (b) understood arrangements for emergency hearings requiring a High Court judge outside those periods, and (c) properly trained and locally based section 9 Deputy High Court judges to deal with paper applications and hearings which do not require a full High Court judge. We deal with these proposals in more details in the next section of this report. We acknowledge that the proposed necessary deployment of nominated High Court judges is, as things presently stand, tight. But that applies to all deployment of all High Court judges. As to the proposal for locally based section 9 Deputy High Court judges, this accords with the more general need, to which we have referred, to relieve nominated Administrative Court judges from some of the burden of mountainous repetitive paper applications. This is an allied, but separate topic. If it is achieved, it should relieve the present pressure on nominated judges somewhat to make them more readily available to hear cases from regional lists.
  8. We are not persuaded that technology can reasonably be expected to provide an answer to the persuasive need for fully operational regional Administrative Court offices. As to very expensive sophisticated modern technology, we believe that it will be beyond the resources of the DCA and HMCS for the foreseeable future. As to hearings by video link, we are persuaded that, for full hearings, they are no proper substitute for a proper hearing at the place where the case naturally belongs. Quite simply, the hearing of a judicial review challenge to the Welsh Assembly Government should not be expected to take place by a second class video link process with the judge sitting in London, when the hearing of a challenge to a London Borough Council takes place in full open court in London.
  9. More generally, we agree that attempts heretofore to hear Administrative Court cases out of London have not been entirely successful. This, we think, is because the lists have to be put together at a distance from a larger bulk of cases administered at a distance; and because there is no back up work for the judge if the list collapses. The problem can be addressed if (a) cases are administered and listed locally, and (b) those responsible for the listing know sufficiently and in advance when appropriate judges will be securely available.
  10. The memorandum in substance argues for the perpetuation without material improvement of the present post box only system which exists for Cardiff, but which has proved to be fundamentally unsatisfactory. We entirely acknowledge that there is a need for control. But we are not persuaded that regional Administrative Court offices predicate a loss of control. In short, we consider that the persuasive elements of the memorandum fall well short of outweighing the case for regional Administrative Court offices.
  11. The other principal factor which could militate against the proposal is whether the use which would be made of regional Administrative Court offices would be sufficient to justify the additional resources needed.
  12. As to judicial resources, we are cautiously confident that improved deployment of Queen’s Bench judges out of London (see below) and a judicious increase in the number and use of deputy High Court judges trained and nominated to sit in the Administrative Court can provide the need. We presently think that there should be at least 3 such deputies attached to each of the 4 regional centres. Each of them would do Administrative Court work for part of their judicial time only. The work that they would otherwise do would need to be covered. We emphasise that their part time deployment to the Administrative Court must not be to the detriment of other specialist and High Court civil jurisdictions. Practitioners at the regional meetings said that they would have no problem if suitable Administrative Court work was heard by appropriately qualified S.9 Deputy High Court judges.
  13. As to administrative resources, we have not presumed to undertake any detailed assessment. May LJ did, however, discuss potential needs with senior managers at each of the centres. The responses varied. Managers in Cardiff and Manchester were confident that the necessary staff could be found. Those in Cardiff thought that 2 or 3 staff might be sufficient. Managers in Birmingham particularly and in Leeds were more cautious. In Birmingham, the estimate was significantly greater than in Cardiff and there was concern that other parts of the Court Service might be depleted to provide the necessary staff. There was also concern in Birmingham about court room space.
  14. Obviously much will depend on the volume of cases. The indications are that the number of cases in Cardiff is likely to be smaller than in the other 3 centres. One indicator would suggest that the number of cases might be greatest in Birmingham (see below). But we would regard this with caution, not least because of the prediction of a large number of asylum and immigration cases in Leeds. A tentative guess might put the total number of staff needed in the 4 centres together at around 20, perhaps not equally divided. This would be broadly commensurate with a total initial number of cases of the 4 centres together of one third of the total presently dealt with in London. This is a broadly realistic extrapolation of the figures considered below. Enthusiasts might say that it is an under estimate.
  15. We have struggled to obtain accurate statistics to form a basis for assessing the likely volume of cases at each of the regional centres. The Administrative Court office in London has done its best at our request to analyse cases lodged in 2005. But the criteria for making an assessment are problematic, and within those criteria the necessary information is sporadic. The best that could be done was to look at the 2,492 non-immigration and asylum cases lodged in 2005 for the address of the claimants. This was available in 721 cases (29% of the total). Of these, 467 (65%) had addresses in London or the South East. The figures for Cardiff were 44 (6%); for Birmingham 79 (11%); for Manchester 57 (8%); and for Leeds 71 (10%). As proportions, these feel about right, although the figure for Manchester feels comparatively low. The proportions are broadly indicative of the one third of the present London total suggested in the previous paragraph. Bearing in mind that the numbers derive from 29% only of the sample, a crude multiplication of those numbers by 3 would give putative annual totals for non-immigration and asylum cases of 132 for Cardiff; 237 for Birmingham; 171 for Manchester; and 213 for Leeds.
  16. Some individual lawyers at the local meetings understandably challenged the accuracy of these figures, saying that they were too low even for existing cases. One solicitor in Birmingham, whose practice alone would account for an annual total significantly in excess of 50, explained the difficulties of managing the paperwork for urgent applications for permission to bring judicial review at a distance from London, and explained that it was difficult to persuade the Legal Services Commission to pay for the extra expense of doing this. Another contributor explained that there were in the order of 120 National Health Services bodies based in Birmingham.
  17. Those at the regional centres make a persuasive chicken and egg argument that, if the Administrative Court was established regionally, this would attract judicial review claims that are not at present made at all. May LJ was told of cases where clients had reluctantly decided not to challenge a decision of a public body upon being told that the case would have to be brought in London. They would have brought the claim if it could have been done locally. In addition, the existence of an active local Administrative Court would foster greater experience among regional practitioners for the benefit of their actual or potential regional clients. It is likely, we think, that there would be some increase in the number of regional cases. Equally, not all regionally based claims would be issued locally, since some claimants would no doubt continue to bring their claims in London. It is likely perhaps that initially many of them might. But the many practitioners and others who attended the meetings (over 450 in all) were in effect telling us that they would encourage and expect many of their clients to bring their judicial review claims regionally.
  18. In the result we hazard an assessment that one third of the present number of non-immigration and asylum claims might be brought locally so as to remain there. There would be immigration and asylum claims as well, and the indications are that in Leeds at least they would be numerous. Our assessment and recommendation is that numbers of this order would sustain the enterprise.
  19. If this tentatively assessed number of claims was brought regionally, we would expect some reduction in the number of claims brought in London. We doubt if the reduction would be as large as the number of claims brought regionally. We would therefore be cautious in suggesting that the administrative staff needed regionally could be balanced by an equivalent reduction in London. On the other hand, an easing of the workload in London should, we think, enable a rather greater deployment of QB nominated judges out of London.
  20. May LJ consulted with and invited comments from John Howell QC, then the Chairman of the Administrative Law Bar Association. He provided access to an analysis of data for the years 2000 to 2005 inclusive deriving from the Administrative Court office and presented to the ALBA Annual Conference in July 2006 by Professor Maurice Sunkin and Dr Kerman Calvo of the University of Essex. In these six years, there were 11,049 applications for permission in non-immigration and asylum cases of which 5,099 (46%) related to local authorities in England and Wales. Nearly 60% of these related to London Borough Councils. There were 2,055 applications for permission to review decisions of local authorities outside London – about 342 per year during the period. These proportions are broadly equivalent to those given above, as are the totals.
  21. John Howell subsequently wrote a very helpful letter, explaining that he wrote in a personal capacity only. He had decided not to consult among ALBA because his knowledge of the details of any proposal would not have made that a fruitful exercise. His letter is cautiously expressed and sceptical of the benefits of the proposal. He points to the lack of detailed information to show the number of cases in which the claimant and defendant are both based in a particular area. He has suggested that convenience alone may be misleading and gave details of a particular case in which a number of parties and their lawyers came from a geographical wide variety of places. He reiterated that it was difficult to assess the scale of the benefits of regional Administrative Courts. This might not matter if there were not additional cost or other disadvantages. But that is unlikely. He has concerns about cost and the use of judicial time; concerns that cases which ought to be heard by nominated High Court judges may not be, and that in consequence the quality of judgments may be reduced; and concerns that there may be organisational problems. He does not suggest that the proposed new arrangements may not prove on balance to be an advantage; but that it is very difficult to form a judgment.
  22. It was suggested in each of three of the four regional centres independently that, if there was uncertainty as to the viability of our proposal for fully operative offices of the Administrative Court in the four centres, a pilot project might be undertaken in one of them. Not surprisingly, each person who suggested this possibility also suggested that their own centre should be the place for the pilot. We firmly reject that suggestion and do not recommend it, because (a) we do not in truth believe that there should be uncertainty; (b) a pilot in one centre would not properly test the proposal as a whole nor respond adequately to the case that is made by each of the regional centres; and (c) choosing one centre would be utterly invidious.
  23. Dyson LJ, then Deputy Head of Civil Justice, has confirmed to us that, if our recommendations in the Administrative Court are to be implemented, no rule amendment appeared to be needed. There would need to be modest changes to the Part 54 Practice Direction.