Case Note – CPR Part 18 Requests for Further Information in Judicial Review Proceedings: R (KBL) v Secretary of State for the Home Office and Others [2022] EWHC 1545 (Admin) and R (JZ) V Secretary of State for Home Office and others [2022] EWHC 1708

Part 18 of the CPR empowers the court to order a party to the proceeding to provide additional information, where necessary to resolve disputes. Requests for orders under CPR18 are very rare in judicial review cases, but two recent Administrative Court decisions illustrate the type of circumstances in which orders will be made; and also, strikingly, that an order can be made at the end of a substantive hearing.

CPR 18.1 provides that “the Court may at any time order a party to: (a) clarify any issue in dispute in the proceeding; or (b) give further information regarding such matter, whether the matter is contained or referred to in a memorandum”. PD 18 provides that requests made under CPR18 must be “concise and strictly limited to what is reasonably necessary and proportionate to enable the party to prepare its own case or the case it faces”. The courts have been clear that CPR 18 requests are not a vehicle for “fishing expeditions”, to investigate whether there are additional grounds on which a dispute can be raised.

In the context of judicial review proceedings, the leading case on the proper approach to applications under Part 18 of the CPR is R (Bredenkamp) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 2480 (administrator). In his judgment, Judge Dingemans observed “there does not appear to be any competent authority on the approach to be taken when considering requests for additional information under Part 18 of the CPR”. He held that the claims should be considered in the context of the duty of candor of public bodies in judicial review proceedings and ruled that the test to be considered was whether the provision of further information was “necessary to resolve the matter fairly and equitably”. He went on to express hope that CPR Part 18 applications in judicial review cases would remain “exceptional”.

Judge Dingemans’ hope has come true – applications remain rare – but the latter KBL and JZ case two applications were made successfully. Each case involved a challenge to a decision denying the claimant resettlement from Afghanistan to the UK: in KBL (where the applicant was a prominent women’s rights activist and human rights defender), the denial was of a request for entry under the “Not Compliant with Rules” entry route and, in JZ (when the applicant was a judge in Afghanistan), the denial related to an application under the Afghan resettlement and assistance policy. In each case, part of the challenge to the impugned decisions was based on an alleged difference in treatment between the claimants and others in materially similar positions, in particular others who had been admitted to the UK under of what became known as Operation Pitting. In each case, the plaintiffs made CPR 18 requests designed to demand that the Home Office provide detailed information about Operation Pitting.

In the KBL In this case, Madam Justice Lang first reviewed the case law relating to the duty of candor of defendants in judicial review proceedings, as well as the decision in Bredenkamp and in light of what has been said:There is no separate procedure under the CPR to enforce the duty of candor. Part 18 requests are one of the means by which a claimant may seek to give effect to the duty of candor owed by a public authority, as well as requests for specific disclosure of documents, if any.”. She then went through each of the questions that had been set out in the Part 18 request to determine whether the Home Office should provide the requested information. Some questions were discarded because they were too general or because they had been sufficiently addressed in the defendant’s testimony, but in relation to others, she felt that they should be answered, sometimes with a modification. of the wording. In making this decision, the judge explicitly found that at least in one case, there was a breach of duty of candor.

In the JZ Madam Justice Hill took a similar approach, emphasizing the importance of upholding the duty of candor and the need to consider Part 18 claims in that context. She undertook a detailed review of the questions that had been included in the Part 18 application and concluded that some, but not all, needed to be answered.

A difference between KBL and JZ was the time. In KBL, the hearing on the merits was adjourned so that the Part 18 application could be determined. In JZ, and mainly because the application was made late in the day, the application of Part 18 was decided at the end of the substantive hearing. The consequence was that once the questions were answered, the parties would have to make further submissions on the impact of the answers to the questions on the issues in the claim and for there to be a new hearing before the judge. On this, Madam Justice Hill said: “Ultimately, I consider the provision of this information necessary to resolve the issue in a fair and equitable manner; that the applicant’s conduct with respect to the application is likely to be relevant to the decision as to the costs of the application; and that the case should be, and can be, handled robustly once the questions are answered”.

Although it is possible that the decisions of KBL and JZ might indicate a slightly increased willingness on the part of the courts to issue orders under CPR 18 in public law proceedings, requests under CPR 18 are even better considered to be exceptional. What is clear is that when the applications are filed, they will be subject to a very detailed review by a judge and can be a powerful tool for an applicant seeking information from a public body.

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Case Note – CPR Part 18 Requests for Further Information in Judicial Review Proceedings: R (KBL) v Secretary of State for the Home Office and Others [2022] EWHC 1545 (Admin) and R (JZ) V Secretary of State for Home Office and others [2022] EWHC 1708

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