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Precedent facts, standards of review and deception
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It turns out that Zayn Malik, formerly of One Direction, knew how to quit while he was ahead. It is a rare talent not universally shared, as shown by a number of recent cases in the higher courts, one of the latest being R (On the Application Of Giri) v Secretary of State for the Home Department  EWCA Civ 784.
From the earlier defeat in the High Court, reported here on Free Movement, Counsel for the Claimant Mr Malik had salvaged some useful remarks from Mr Justice Jay on the issue of precedent fact and the level of scrutiny to which a court will subject a decision of the Secretary of State. In the latest judgment, the Court of Appeal sweeps all that away and gives the rest of the appeal exceedingly short shrift. Richards LJ states dismissively that having considered the factual background “I see no reason to differ from the judge’s finding that the decision was not Wednesbury unreasonable.” Mr Malik had also attempted to argue that the normal civil standard of proof was the wrong one, an argument obviously contrary to In re B (Children)  UKHL 35, and this argument is also rapidly dispatched by Richards LJ.
Total defeat is somehow extricated from the gums of not-a-bad-result-in-the-circumstances.
The issue of precedent fact is a fairly obscure one that excites lawyers and judges (“excites” may be overstating things) but has limited if any interest to normal people. If the exercise of a legal power depends on a particular fact first being being established, this is a “precedent fact”. If there is a precedent fact, in an application for judicial review the judge makes his or her own decision on all the facts and evidence as to whether the fact is proven to the required standard and therefore whether the legal power existed or not.
If a discretion is granted by statute to the Secretary of State and the legal power was exercised under that discretion the lawfulness of the exercise of the power does not depend on a precedent fact. In such cases, the judge merely assesses whether the decision was one that was reasonably open to the Secretary of State, applying what lawyers call the “Wednesbury reasonableness” approach.
Giri is a case in point on how arcane this distinction can be. In the High Court Jay J found that whichever was the correct approach, he would reject the claimant’s case. A witness statement served by Mr Malik’s solicitors was found to damage rather than improve the claimant’s position, the litigation equivalent of shooting oneself in the foot. Nevertheless, an appeal was pursued and the Court of Appeal has even more comprehensively demolished the arguments advanced by Mr Malik, leaving the law less favourable to other claimants than it would otherwise have been and the client in theory footing the Government’s legal costs. Given that the Secretary of State instructed Lisa Giovanetti QC as well as a junior, those costs will no doubt be quite considerable.