The Court of Appeal has returned to the issue of “totally without merit” certificates in judicial review cases. These certificates can be imposed by a judge who refuses permission for an application for judicial review on the papers and it prevents the applicant from seeking an oral hearing. There is a rght of appeal to the Court of Appeal but with no right to an oral hearing.

The background and the Court of Appeal’s previous consideration of this issue in the case of Grace [2014] EWCA Civ 1091 was previously covered on Free Movement here: Meaning of “totally without merit”

The new guidance in the case of Wasif v The Secretary of State for the Home Department [2016] EWCA Civ 82 is as follows:

It is inescapable that the distinction between those cases which are “bound to fail” (and thus fall for certification as TWM) and those where permission is refused on the less definitive basis identified above is a matter for the assessment of the judge in each case. The scope for general guidance is limited: adjectives and phrases of the kind such as “bound to fail”, “hopeless” and “no rational basis” are, we hope, helpful, but they are necessarily imprecise. However, we would make the following observations:

(1) At the risk of spelling out the obvious, judges should certainly not certify applications as TWM as the automatic consequence of refusing permission. The criteria are different.

(2) We repeat what Maurice Kay LJ said in para. 15 of his judgment in Grace, as quoted above:

“[N]o 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.”

(3) The potential value of an oral renewal hearing does not lie only in the power of oral advocacy. It is also an opportunity for the claimant to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers (and which should have been identified in the reasons). The points in question may not always have been anticipated or addressed in the grounds and skeleton argument (particularly if the judge has drawn them from the respondent’s summary grounds – see (6) below). The judge should only certify the application as TWM if satisfied that in the circumstances of the particular case a hearing could not serve such a purpose; the claimant should get the benefit of any real doubt.

(4) Mr Fordham submitted that the essential question for a judge in deciding whether to certify was “whether another Judge, with the benefit of oral submissions at an oral hearing, would be bound to refuse [permission]”. That is broadly in line with what we have said above, but the reference to “another Judge” is not quite right. Although it will generally be the case that any renewal hearing will be before a different judge than the one who refused permission on the papers, the rules do not require that that be the case; and in any event in an ideal world one judge’s standard of what is arguable should be the same as another’s. The point of a renewal hearing is not that the claimant is entitled to another dip into the bran-tub of Administrative Court or Upper Tribunal judges in the hope of finding someone more sympathetic. Having said that, we do not deny that some judges may find it a useful thought-experiment to ask whether they can conceive of a judicial colleague taking a different view about whether permission should be granted.

(5) Judges considering permission applications will quite commonly encounter cases – particularly where the claimant is unrepresented – in which the claim form/grounds and/or the supporting materials are too confused or inadequate to disclose a claim which justifies the grant of permission but where the judge nevertheless suspects that proper presentation might disclose an arguable basis of claim. In such cases he or she should not certify the application as TWM. The right course will usually be to refuse permission, with reasons which identify the nature of the problem, giving the claimant the opportunity to address it at an oral renewal hearing if they can; but there may sometimes be cases where the better course is to adjourn the permission application to an oral hearing, perhaps on an inter partes basis.

(6) Mr Fordham pointed out that at the time that a judge decides the permission application on the papers the respondent will have had the opportunity to file an Acknowledgment of Service, incorporating summary grounds of defence, to which the claimant has under the Rules no right of reply (though some claimants do provide responses which are in practice put before the Judge). Judges should not certify a claim as TWM on the basis of points raised in the summary grounds to which the claimant might have had an answer if given the opportunity.

Underhill LJ also emphasises that proper reasons must be given where a totally without merit certificate is imposed by a judge:

where the application is certified as TWM, so that the claimant has reached the end of the road (subject to appeal), peculiar care must be taken to ensure that all the arguments raised in the grounds are properly addressed … It does not follow that the reasons for refusing permission need always be lengthy. On the contrary, conciseness is a virtue, and if a ground can properly be disposed of adequately in a sentence or two so much the better. But what is necessary depends on the case. All the claimant’s points must be identified and addressed. If there are professionally pleaded grounds, those grounds should be taken in turn. If, however, as is alas too often the case, the grounds are discursive or repetitious, it is the Judge’s responsibility to analyse them into their component parts and say why each fails to give the claimant a realistic prospect of success (unless the case is one where disposing of one ground renders it unnecessary to consider the others).

Separate reasons to those why permission is being refused should be given as to why the totally without merit certificate was imposed.

On the facts of both the cases, the Court of Appeal is critical of deficient reasoning in imposing a totally without merit certificate by Upper Tribunal Judges Eshun and Macleman. The result (refusal of permission) would have been the same, the Court of Appeal held, but it was far from clear that totally without merit certificates were justified and in any event the reasoning given did not sufficiently justify the certificates.

The Court of Appeal also makes clear that no appeal lies to the Court of Appeal against the imposition of a “totally without merit” certificate.

It is the experience of practitioners that some Judges of the Upper Tribunal have been handing out totally without merit certificates like sweeties. More care should be taken and better reasons given, the Court of Appeal tells us.

Source: Wasif v The Secretary of State for the Home Department [2016] EWCA Civ 82 (09 February 2016)