DENTON, MITCHELL AND ADMINISTRATIVE LAW: PUBLIC INTEREST IS A “HIGHLY SIGNIFICANT FACTOR”

The Denton and Mitchell criteria were considered, in passing, in R (RA-Nigeria) -v- Secretary of State for the Home Department [2014] EWHC 4073(Admin). Where Andrew Thomas QC, sitting as a Deputy High Court Judge, considered an application that the Defendant Secretary of State be debarred from defending a claim following a breach of the rules.

THE CASE

The Claimant was bringing an application for judicial review following a decision to certify his human rights as “clearly unfounded”.

THE APPLICATION TO DEBAR THE DEFENDANT FROM RESPONDING

Preliminary Issue

  1. A preliminary issue arose at the start of the hearing. On behalf of the Claimant, Mr Halim invited me to debar the Defendant from responding to the claim on the grounds of non-compliance with the Civil Procedure Rules. This was an oral application made without notice to the Defendant before the day of the hearing.
  2. The point which Mr Halim took was that the Defendant had failed to serve Detailed Grounds of Defence as required by Rule 54.14(1) of the Civil Procedure Rules. The rule states as follows:

“A defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve-

(a) detailed grounds for contesting the claim or supporting it on additional grounds; and

(b) any written evidence

within 35 days after service of the order granting permission”.

Mr Halim relied only on (a), the lack of Detailed Grounds. The obligation is plainly mandatory. There is no automatic sanction for non-compliance although there is a general power to strike-out a party’s case for non-compliance with the rules under Rule 3.4(2)(c) CPR.

  1. Mr Halim referred me to the decision of the Court of Appeal in Mitchell v News Group Newspapers (2013) EWCA Civ 1537. He submitted that this was an occasion when the Court should take a robust approach to enforce compliance with the Civil Procedure Rules. He also referred me to R (on the application of Mohammadi) v SSHD (2014) EWHC 2251 (Admin) in which Professor Forsyth, sitting as a Deputy High Court Judge, rejected a similar application in a case where Detailed Grounds of Defence had been served nine months late. In that case it was held:

“Although Mitchell was not in terms restricted to private law I recognise that there is a public interest in securing the lawful exercise of public power that transcends the interests of the litigants immediately involved. This public interest is not consistent with striking out the Detailed Grounds and thus deciding this case on an artificial basis. … The application of the new “robust approach” of Mitchell to public law litigation will doubtless be considered in other cases; but this is not the case in which to do so.”

  1. Mr Halim emphasised that this is a case of an outright failure to serve Detailed Grounds of Defence, rather than mere late service. Mr Halim did not seek an adjournment and when pressed he did not identify any material prejudice to the Claimant. His only complaint was that the Defendant’s Skeleton Argument dated 17th October 2014 contained extensive submissions on the law relating to risk of suicide in the context of Article 3 claims. These had not been set out in the Summary Grounds of Defence.
  2. On behalf of the Defendant, Miss Anderson apologised for the failure to comply with the Rules. There was nothing to indicate that it was due to anything other than oversight, although pressure on resources may have contributed to that. The Defendant’s factual case was set out in the Summary Grounds and the relevant evidence was already before the Court. Had the matter been considered within time the overwhelming likelihood is that the Defendant would have formally confirmed that the Summary Grounds should stand as the Detailed Grounds of Defence, as is often the case.
  3. I recognise the importance of ensuring that the rules of court are enforced. I agree with the observations in Mohammadi, that in judicial review claims the public interest will usually be a highly significant consideration. When applying the three-stage test outlined in  Denton  v TH White Ltd (2014) EWCA Civ 906, it seems to me that the public interest must be a highly significant factor when assessing ‘all the circumstances of the case’.
  4. The Defendant’s response was set out in Summary Grounds of Defence annexed to the Acknowledgement of Service which went into considerable detail over 11 pages. The decisions under review are contained within the two Notices of Decision (30th July 2012 and 10th May 2013) each of which constitutes a lengthy and detailed response to the substance of the Claimant’s case. The submissions of law contained in the Skeleton Argument are not something which necessarily belong in a pleading. They concern the case law which arises for consideration on the Claimant’s own case.
  5. On the facts of the present case, I regard the non-compliance to be one of form not substance and its effect to be insignificant. The fact that comprehensive grounds of response had already been served appears to have led the Defendant to overlook the service of Detailed Grounds within the meaning of the Rules. In all the circumstances, taking into account the admitted lack of prejudice to the Claimant and the considerations of public interest, I find no merit in the suggestion that the Defendant should be debarred from responding to this claim.

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