UK: Gardner v. Secretary of State for Health and Social Affairs – Judicial Review Update
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The judicial review of the government’s rapid response to COVID-19, in particular in relation to the referral of COVID-19 positive patients to care homes, began yesterday under the chairmanship of Lord Justice Bean and Mr. Judge Garnham. Leave for review was granted on all grounds by Judge Linden following an appeal by private asylum seekers Dr Cathy Gardner and Fay Harris. This blog will explore key issues delivered at yesterday’s hearing.
Disclosure of Minutes of Cabinet Meetings
The first of the public law challenges to be addressed was the plaintiffs’ request for disclosure of the minutes of cabinet meetings. The plaintiffs argue that these detailed key and fundamental discussions likely shaped the decisions of the Secretary of State for Health in the early stages of the pandemic. The request, originally dismissed by Madam Justice Eady in August, was based on the fact that the documents whose decision-makers at the time had not been disclosed, and this was essential to understanding the reasoning processes behind the dismissal covid positive patients in nursing homes. While Sir James Eadie QC and Eleanor Gray QC argued, on behalf of the defendants, that the duty of candor had been fulfilled by the disclosure of a witness statement containing a summary of those discussions, Mr Coppel QC for the plaintiff has described the disclosure to date as being “deeply unsatisfactory”. After a brief review, the judges said they and Mr. Coppel would have access to a redacted version of the four documents referenced in the statement and would make a decision on whether they should be vented in open court.
Professor Gordon’s evidence – factual evidence or opinion evidence?
The hearing then turned to the second issue, whether the claimants would be permitted to present a third witness statement from Professor Gordon. While Mr. Coppel described the statement as evidence of fact, he acknowledged there were areas of opinion evidence, leading the judges to consider whether it was admissible on judicial review.
Back on sale for 10 days
They further considered the length of the statement and in fact submissions thus far, and decided that it was unwise to try to squeeze the substantive hearing into a four-day window, as previously discussed. Despite Coppel’s comments that there were commonalities between the parties, such as acknowledging limited PPE at the start of the pandemic, the judges indicated they were willing to ask for the exam to be reinstated. for the next term for a 10-day hearing. , with four to five days in advance for reading. They argued that the rest of the hearing could then deal with issues such as disclosure and admissibility.
If the substantive hearing is extended over a period of 10 days, it will likely strain the crowdfunding resources needed to fund this claim. At the time of writing, claimants had only reached £133,836 of their initial goal of £175,000 and the crowdfunding is set to close in seven days. While this is a blow to the plaintiffs’ funding position, they will likely now have more time to raise funds, particularly if the judges choose to put this up for sale again for the next term.
A judicial review
This judicial review is being brought on the basis of irrationality and the court will consider a number of factors to decide whether the defendants acted unlawfully, such as:
- Whether Defendants, in their referral of COVID-19 patients to care homes in the early stages of the pandemic, acted so unreasonably that no reasonable decision maker could have made the same decision;
- Whether the defendants considered irrelevant matters or failed to consider relevant matters; and
- Whether the defendants acted dishonestly or in bad faith.
At the hearing, the judges considered the ground of irrationality and said they did not consider that the claimants would be able to succeed on their claims to Articles 8 and 14 ECHR and Sections 29 and 149 of the Equality Act if they did not win their case on the right to s. 2 land of life and irrationality. They indicated that they did not understand how, if the complaint failed on irrationality and Article 2, it would make a difference if the defendants had any regard for COVID-19 being particularly dangerous for the elderly and/or or disabled.
What was clear at the hearing was that there was fundamental disagreement between the parties as to the true nature of judicial review. Sir James Eadie argued the claimants were trying to introduce additional evidence to simulate a full trial with expert and witness evidence battles. The justices agreed that this was not in keeping with the spirit of judicial review and reaffirmed the role of review to review the legality of the government’s response to the pandemic in the early months. Unlike normal civil court proceedings where expert evidence would be instrumental, judges considered whether the same evidence would have a place in the judicial review process.
Adjourned until October 22 – Itinerary
It was finally decided to adjourn the hearing to Friday, October 22, the continuation being ordered in the previous days;
- The parties to reduce the problems between them;
- For applicants to submit a summary of issues in a form similar to that of a brief;
- For plaintiffs to condense their skeleton of argument into a shorter, more succinct document, offering clear explanations of how defendants failed to protect care home residents;
- That the plaintiffs highlight the areas of expert opinion in Professor Gordon’s testimony and explain why they are admissible;
- Defendants to raise any objection to the admissibility of Professor Gordon’s testimony; and
- Plaintiffs to provide an explanation of how their case could succeed on Sections 8 and 14 and Sections 29 and 149 if it were to fail on Section 2 and irrationality.
Directions will be given and a decision will be made as to the duration of the substantive hearing when the hearing resumes, which as noted above is likely to be a financial blow to the claimants, who must now fund no only an extended hearing, but their lawyer’s work before and during the hearing.
Issues such as disclosure, admissibility of evidence and specific violations will be reviewed on Friday and another blog will follow with these updates.
Originally published October 20, 2021.
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