SYNOPSIS:

 

1.  The Claimant brought a claim for judicial review regarding certain DWP policies relating to the Mandatory Work Activity Scheme (MWA), made by the Secretary of State for Work and Pensions under §17A of Jobseeker's Act 1995.  There were originally 4 grounds of challenge, but the Claimant was allowed to advance only that part of ground 1 regarding the regulations being ultra vires in that they provided no prescribed description.  An application on appeal, to re-instate the grounds struck-out was refused on 11 October 2013. 

 

2.  Subsequent to that refusal, on 30 October 2013, the Supreme Court handed down its judgement in the matter of Reilly & Wilson v Secretary of State for Work & Pensions [2013] UKSC68.  Inter alia, that judgement found that the Defendant had failed to meet the statutory requirement regarding notices served under §4 of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (ESES regulations), a scheme also made under §17A of Jobseeker's Act 1995, and had also failed to comply with the 'prior information duty'.  The notice served on the Claimant was under §4 of the MWA regulations, the wording of which was identical to §4 of the ESES regulations.  The notice itself was identical in form and content (save for the immaterial fact that it was with a different provider company) to that in Reilly, and thus also failed to meet the statutory requirement.  It was also clear that the Defendant had failed to comply with the prior information duty.  The issues of defective notices and prior information duty had been struck-out from the Claimant's application for judicial review.

 

3.  The Supreme Court decision in Reilly meant that, in the Claimant's case, not only had the ground in question been wrongly struck-out, but also that the claim was certain to succeed.  Accordingly, an application to the Court of Appeal was made on 26 November 2013 to re-instate the relevant ground.  That application was refused by the Deputy Master of the Court of Appeal on 9 December 2013, on the basis that the Claimant could not re-open an appeal.  The Claimant then made a second application on 8 January 2014, under CPR 52.17 (now CPR 52.30), which purports to provide for the re-opening of an appeal where it would be unjust to do otherwise.  That application was returned, without any consideration, on 17 January 2014.

 

4.  Subsequently, in the case of Hewstone Reilly & Hewstone v Secretary of State for Work & Pensions [2016] EWCA Civ 413 at paragraph 30, the court held that notices served on Mr Hewstone under §4 of the regulations were "in the same form as in Mr Wilson's case", and thus that part of his claim was "bound to succeed".  Those notices were identical in form and content to, and made under the same regulations, as those served on the Claimant.

 

5.  The Claimant had been confined to arguing only ground 1 of his claim, and failed with those arguments.  The imposition of a bar on the re-opening of appeals created a situation where a winning claim was converted into a losing one, as a direct result of an impediment imposed by the court itself.  A further consequence was that, rather than receiving his costs (costs proportionality rules not being in existence at that time), the Claimant was ordered to pay the Defendant's costs of some £33,000.  

 

6.  The Defendant did nothing for two years, and then wrote demanding payment.  During the subsequent ongoing correspondence between the parties, without informing the Claimant, the Defendant obtained a  Final Costs Order dated 18 August 2018.  The Defendant was aware that the Claimant was filing a further application to the Court of Appeal under CPR 52.30, which was sealed on 13 August 2018.

 

7.  Notwithstanding the fact that the standard for re-opening an appeal under 52.30 is extreme, the application met the strict criteria, as defined in Taylor v Lawrence [2002] EWCA Civ 90, and further defined in Re Uddin [2005] EWCA Civ 52, in that:  It was necessary to reopen the appeal to prevent an injustice; there was no alternative remedy; the circumstances were exceptional in that settled case law from the Supreme Court, post-dating the original refusal of permission, meant that the Applicant had been wrongly and unlawfully prevented from arguing a ground which was certain to succeed, and thus the right to fair judicial process had been critically undermined and corrupted.

 

8.  The application under 52.30 was refused by LJ Singh on 30 November 2018.  There were two bases for the refusal, in essence that: (i) The Applicant took too long, and then was at fault for not acting proleptically, by challenging the costs order before it had been made and before he knew the Defendant intended to take such enforcement action, and (ii) that the earlier application dated 26 November 2013, seeking to re-open the appeal, had been rejected by a Deputy Master on the ground that an order cannot be appealed twice. 

 

9.  Taking these points in order: (i)  a miscarriage of justice is a miscarriage of justice, and cannot be extinguished by the passage of time.  The refusal of permission by Singh LJ constituted the proposition that, in fact, the miscarriage of justice in this case was extinguished by the passage of time and the Defendants costs order. 

 

10.  With regard to (ii), namely that the Claimant had already been told that he could not re-open an appeal, the facts are that the application before Singh LJ was under CPR 52.30, and that rule exists for the specific purpose of allowing an appeal to be re-opened in exceptional circumstances, when to do otherwise would constitute a miscarriage of justice.  Singh LJ uses the fact that the Claimant had previously been told, in an application outside 52.30, that he could not re-open an appeal as justification for refusing an appeal under 52.30.  In so doing, he shows that, in truth, there is no distinction between the two types of appeal.   Consequently, in reality there is no genuine safeguard against a miscarriage of justice, and CPR 52.30 is bogus.

 

11.  The alternative is that any appellant, seeking to re-open an appeal, is disqualified from recourse to 52.30 merely by the act of having sought permission, initially, with a standard application outside 52.30.  Legally and logically that is an absurdity.

 

12.  The refusal of permission by Singh LJ was both irrational and transparently specious, with no legitimate legal basis.  In those circumstances, the absence of legitimacy for the decision is evidence of improper motivation.

   

 

 

 

            

                                                         COURT OF APPEAL REF: C!/2013/1137

CLAIM NO: CO/5194/2012

NICHOLAS SMITH

 

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

(ON APPEAL FROM MR JUSTICE HICKINBOTTOM)

 

 

R (on the application of) NICHOLAS SMITH  

&

SECRETARY OF STATE FOR WORK AND PENSIONS

 

 

 

 

 

SKELETON ARGUMENT FOR APPELLANT

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References in [ ] refer to the appeal bundles.  Tab references are to authorities bundle.

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1.  This application is made under CPR 52.30.  The Claimant can show that the integrity of the earlier litigation process has been critically undermined, and a wrong result arrived at, by the action of the Court of Appeal.  There is no alternative remedy and, to avoid a miscarriage of justice / a real injustice, it is necessary to re-open the case.  The circumstances are exceptional and justify such a re-opening.  The facts are as follows:

 

2.  On 18 May 2012 the Claimant filed an application for judicial review with regard to the Mandatory Work Activity Scheme (MWA), made by the Secretary of State for Work and Pensions under §17A of Jobseeker's Act 1995.  There were originally 4 grounds of challenge, but the Claimant was allowed to advance only that part of ground 1 regarding the regulations being ultra vires in that they provided no prescribed description [51-56 & 12].

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3.  On 1 May 2013 the Claimant applied to the Court of Appeal for permission to reinstate those parts of his grounds regarding the MWA regulations being irrational and a violation of Article 4.2 of the European Convention on Human Rights.  Permission was refused by LJ Sullivan on 11 October 2013 [23-31 & 32]. 

 

4.  On 30 October 2013 the Supreme Court handed down their judgement in Reilly & Wilson v Secretary of State for Work & Pensions [2013] UKSC68.   Inter alia, that judgement found that the Defendant had failed to meet the statutory requirement regarding notices served under §4 of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (ESES regulations), a scheme also made under §17A of Jobseeker's Act 1995, and had also failed to comply with the 'prior information duty'.  Both these issues were identical to those forming part of the Claimant's claim for judicial review.  The Claimant had been refused permission by Hickinbottom J to advance two issues which, following the SC decision in Reilly, were bound to succeed.

 

5.  Consequently, on 26 November 2013 the Claimant applied to the CA for permission to reinstate the two issues in question[1] [33-41].  On 9 December 2013 the application was refused on the basis that:

"The Court of Appeal has already dealt with the Applicant's application for permission to appeal this order under reference C1/2013/1137.  The Applicant cannot seek permission to appeal the same order again." [42]

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6.  The Claimant then applied, again, under CPR 52.17 (now 52.30), to have the issues re-instated, in light of the favourable Supreme Court decision in Reilly [43-44].  The papers were again returned to the Claimant, along with a letter stating that the jurisdiction of 52.17 was "quite exceptional" [45-46].  That response, regarding an application which clearly identified that the recent Supreme Court decision materially benefited the Claimant's position, was singularly discouraging and would lead any reasonable person to believe that a further application was useless.  The concluding part of the letter, saying that the Claimant could nevertheless compile another bundle and pay for another attempt, did nothing to ameliorate the negative tone of the communication.

      

7.  There can be no doubt that a fair determination of the two issues in question would have terminated in the Claimant's favour.  In Reilly [tab 3], Mr Wilson was served with a notice under §4 of the ESES regulations which required at 4(2)(c): "details of what C is required to do by way of participation in the Scheme" (C being the jobseeking claimant).  The Supreme Court found:

50.  "In our opinion, there was a failure to comply with regulation 4(2)(c). The letter of 16 November 2011 merely informed Mr Wilson that he had to perform “any activities” requested of him by Ingeus, without giving him any idea of the likely nature of the tasks, the hours of work, or the place or places of work. It seems to us, therefore, that the letter failed to give Mr Wilson “details of what [he was] required to do by way of participation”. Again, it is necessary to balance practicality, in the form of the need of the Secretary of State and his agents for flexibility, against the need to comply with the statutory requirement, which was plainly included to ensure that the recipient of any such letter should have some idea of where he or she stood. A requirement as general and unspecific as one which stipulates that the recipient must “complete any activities that Ingeus asks you to do”, coupled with the information that the course will last about six months falls some way short of what is required by the words of regulation 4(2)(c), even bearing in mind the need for practicality."

 

8.  In Reilly & Hewstone v Secretary of State for Work & Pensions [2016] EWCA Civ 413 the CA found, at paragraph 30 of their judgment [tab 4], that Mr Hewstone's notice served under §4 was "in the same form as in Mr Wilson's case", and that consequently his challenge on regulation 4(2)(c) "would have been bound to succeed".  The Claimant's notice was also in the same form as Mr Wilson's, and also failed to identify the place or places of work, and to indicate the hours [57].  Under regulation 4(2)(d)  - which corresponds with §4(2)(c) of the ESES regulations [tabs 1 & 2] - the notice stated: "you must complete any activities that ESG Holdings Ltd asks you to do" .  Save for a different provider name, which is immaterial, the wording was identical.  In those circumstances, and in light of the Supreme Court judgement, it was impossible for that part of the claim to fail.

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9.  The Defendant also failed to comply with the 'prior information duty' identified by the Supreme Court in Reilly:

65:  "Fairness therefore requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made."

 

10.  The Claimant was given no information whatsoever, and thus denied the opportunity to make any representations.  He was simply handed a referral notice and told that he would be contacted by the provider in due course.  A week later he was informed, by the provider, that he would be required to travel to another town and shift furniture for the British Heart Foundation.  The Claimant had a medical condition which rendered such activity both painful and dangerous to his health [affidavit at 58-59].  Notwithstanding that fact, the Claimant was forced to participate . 

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11.  The Claimant was prevented from bringing his judicial review claim to a successful resolution by an arbitrary rule allowing only one appeal per order.  It is self-evident that such an approach prevents the re-opening of matters in circumstances where it is unjust not to re-open them, such as in the present case where a Supreme Court judgement, handed down after the first application for permission to appeal, made inevitable an outcome successful to the Claimant.  

   

12.  In addition, following the decision of the Supreme Court in Reilly, the Claimant had a legitimate expectation of success with regard to his claim, but was denied a fair determination by an arbitrary rule.  The rule, therefore, is incompatible with Article 6.1 of the Human Rights Act. 

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13.  Had the Claimant been allowed to reinstate the grounds in question, his judicial review would have succeeded.  Instead he was restricted to one limited ground which ultimately was unsuccessful, thus giving rise to the Defendant's costs.  Accordingly, the Claimant appealed to the Court of Appeal and Supreme Court, unsuccessfully.  The Claimant has already paid £7,544 in relation to those Court of Appeal and Supreme Court costs, with a further £1,451.39 outstanding [100-101 & 104].  The Claimant was under the impression, when paying the £7,544, that it constituted the whole bill.  Some 12 months later, and 2 years after the Administrative Court proceedings concluded, he received a bill for £23,902.26 in relation to those costs [102-103], making a total bill of some £32,897.  The Claimant no longer has any resources and will be made bankrupt as a result.

 

14.  There is a clear injustice in the Court's activities when an individual is forced into bankruptcy over costs, when those costs would not have arisen had the Court not imposed an arbitrary, irrational and unfair limit of only one appeal per given order, irrespective of circumstances.  That injustice is not extinguished by the passage of time, and the administration of justice is brought into disrepute as a result.

 

15.  Even if it was argued that, at the time permission to reinstate ground 2 was refused, the claim for judicial review had not been determined and may have terminated in the Claimant's favour, that is certainly not the position now.  The refusal of permission fatally prejudiced the claim, leading to the costs issue and attendant bankruptcy proceedings.  Even if the refusal did not constitute a miscarriage of justice at the time, it did subsequently.  This is a matter which the Court has the power to put right.  Any suggestion that there was no miscarriage of justice at the time, and it is now too late to rectify matters, would be mere 'catch 22' sophistry endorsing a miscarriage of justice.

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16.  In the same vein, whilst it is the case that costs incurred as a result of a fair determination do not engage Article1 of the First Protocol HRA, that is not the case here.  The Court interfered with the Claimant's right to a fair hearing, resulting in the failure of the claim.  The Defendant's application for a provisional costs order, and the attendant bankruptcy proceedings, only arise because the Claimant was denied a fair determination of his claim.  In such circumstances the Defendant's provisional costs order dated 13 July 2018 [105] acts as a trigger to engage A1P1 and article 6.1 HRA.

 

Dated 3 August 2018

 

Nicholas Smith

 

[1] §4 notice issue at paragraph 60 of Amended Statement of Claim, under ground 2, and prior information duty also under ground 2 [71-75].

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