Normally, where an application for judicial review is made the first stage is for a judge to consider the grounds for judicial review and the acknowledgement of service and summary grounds of defence, then decide without holding a hearing whether permission should be granted. Lawyers commonly refer to this decision as being “on the papers” because there is no oral hearing.

If permission is refused “on the papers”, as often occurs even in cases that ultimately go on to succeed, it is normally possible to apply for an oral renewal, also called a reconsideration. This involves submitting short reasons why permission should be granted despite the refusal on the papers and the court or tribunal will then list the case for a short oral hearing.

Not always, though. The Civil Procedure Rules (CPR) were amended so that when a judge refuses an application on the papers, the judge may also certify the case as being “totally without merit”, which has the effect of preventing the applicant from applying for an oral hearing. CPR 54.12.7 provides:

Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing.

The Upper Tribunal rules include an equivalent provision at rule 30(4A):

Where the Upper Tribunal refuses permission to bring immigration judicial review proceedings [or refuses to admit a late application for permission to bring such proceedings] and considers the application to be totally without merit, it shall record that fact in its decision notice and, in those circumstances, the applicant may not request the decision to be reconsidered at a hearing.

In the case of R (On the Application Of Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 the Court of Appeal considered the meaning of “totally without merit”. This is an important case I recently realised I have not previously written up for the blog. Quoting Mr Paul Bowen QC, writing on the UK Human Rights Blog, Zane Malik for the claimant argued that:

” … finding of TWM should not be made unless the claim is so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made.”

Maurice Kay LJ rejects this approach, instead holding that “totally without merit” means “bound to fail”:

I return to the purpose of CPR 54.12.7. It is not simply the prevention of repetitive applications or the control of abusive or vexatious litigants. It is to confront the fact, for such it is, that the exponential growth in judicial review applications in recent years has given rise to a significant number of hopeless applications which cause trouble to public authorities, who have to acknowledge service and file written grounds of resistance prior to the first judicial consideration of the application, and place an unjustified burden on the resources of the Administrative Court and the Upper Tribunal. Hopeless cases are not always, or even usually, the playthings of the serially vexatious. In my judgment, it would defeat the purpose of CPR 54.12.7 if TWM were to be given the limited reach for which Mr Malik contends. It would not produce the benefits to public authorities, the Administrative Court or its other users which it was intended to produce. I have no doubt that in this context TWM means no more and no less than “bound to fail”.

There are safeguards to the application of CPR 54.12.7, though:

The adoption of this approach does contain within it two important safeguards. First, no judge will certify an application as TWM unless he is confident after careful consideration that the case truly is bound to fail. He or she will no doubt have in mind the seriousness of the issue and the consequences of his decision in the particular case. Secondly, the claimant still has access to a judge of the Court of Appeal who, with even greater experience and seniority, will approach the application independently and with the same care. To my mind, these safeguards are sufficient. CPR 54.12.7 so applied does not detract from the vital constitutional importance of the judicial review jurisdiction. Moreover, it is consistent with the overriding objective of the CPR.

The safeguards are not as full as one might initially, think, however. On an appeal to the Court of Appeal against a “totally without merit” certificate case, the Court of Appeal is limited to considering the case on the papers only, without any right to request the normal oral renewal at the Court of Appeal. See CPR 52.15.1A and 52.15A for appeals from the High Court and Upper Tribunal respectively.

Nevertheless, there have been instances where the Court of Appeal has intervened. Worryingly, some “totally without merit” certificates are being wrongly applied by judges of the Upper Tribunal.