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High Court guidance for local authorities unable to defend JR proceedings due to "financial reasons"

In the recent decision of R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council and Trilogy the High Court provided direction to local authorities prevented from defending their decisions in judicial review proceedings because of financial constraints.

Background

This latest High Court decision forms part of a long-running saga in which a third planning permission granted by the Forest of Dean District Council for an Asda development outside of Cinderford town centre has now been quashed. MidCounties Co-operative Ltd, the owner of Cinderford's town centre Co-op supermarket, successfully argued that the latest permission granted by the council was, just like its previous two decisions, based on a defective officer's report. The report had again failed to carry out a true assessment of the full impact on the town centre, and in particular on the existing Co-op supermarket. This meant, the Court held that the council had still not been properly informed about the true extent of the harm that was likely to result from the proposed Asda development.

Postscript

However, it is the postscript to this High Court decision that is particularly interesting. The Court  expressed concern that the council had not been a party to the proceedings and had left the developer, being the Interested Party, to defend its decision. The Defendant authority had informed the Court in a letter that, although it supported the Interested Party in its resistance to the challenge, it could not afford to take an active part in the proceedings due to financial reasons.

The judge noted the significance of judicial review proceedings and the different dynamic to that of other civil litigation. In particular, the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. Public authorities have a "duty of candour and co-operation" to help the court understand its decision-making process and deal with the issues fairly. As a result the local authority "should conduct the litigation with its cards face upwards."

The High Court went on to say that if a public authority finds itself in a position where it cannot, due to financial constrictions, defend its own decision in judicial review proceedings it should, at the very minimum, consider:

  • Disclosing all relevant documents, so as to comply with its duty of candour and co-operation.
  • Whether it should file a witness statement to assist the court in understanding its decision-making process and deal with the claim fairly.
  • Whether to file an acknowledgement of service, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained.
  • Whether a representative, not necessarily a lawyer, should be present in court at any hearing.

Comment

In a time of ever-tightening public sector budgets this judgement by the High Court serves as a useful direction to local authorities who find themselves in a similar position to this Defendant Council. Even where financial reasons can limit a local authority's ability to fully defend its decision, the special dynamic of judicial review proceedings could serve to place these minimum requirements on the authority.

The full judgement is available here