DENTON IN THE CONTEXT OF JUDICIAL REVIEW: PUBLIC INTEREST A HIGHLY SIGNIFICANT CONSIDERATION

In The Queen (on the application of Charith Missaka Wijesinghe) -v- Secretary of State for the Home Department [2015] EWHC 1558(Admin) HH Judge Deborah Taylor (sitting as a judge of the High Court) considered the Denton principles in relation to an issue that arose in a judicial review.

THE CASE

The claimant was seeking judicial review of a decision to reject an application to remain as a student and sought a mandatory injunction directing leave to remain.

THE CLAIMANT’S APPLICATION TO DEBAR THE DEFENDANT

Preliminary Issue: Application to debar the defendant from defending the claim

  1. In the Order granting permission, HHJ Serota QC refused the defendant an extension of time to file an Acknowledgment of Service. Three extensions had been given previously and he considered that the delay was unacceptable. The Order stated :

“the defendant … who wishes to contest the claim or support it on additional grounds must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence within 35 days of the order ..

  1. The defendant filed an Acknowledgement of Service with summary grounds of defence on 11 March 2014, the day after the required date in the order. The summary grounds set out the substantive points relied upon by the defendant, including that the claimant was out of time to bring his claim, and that the decision of the Court of Appeal in Rodriguez v SSHD [2014] EWCA Civ 2 overturned the Upper Tribunal judgment upon which the application relied. Detailed grounds of defence were not filed until September 2014, some six months later, and well outside the time limit in the order. No response was filed by the claimant in response to either the summary grounds which referred to the Court of Appeal decision inRodriguez, nor in response to the detailed grounds. In fact, Mr Jafar told the Court that he had not received the detailed grounds, and submitted that as the defendant had failed to comply with the order of HHJ Serota QC in filing detailed grounds within 35 days, the defendant should be debarred from defending this claim. This was a point not taken prior to the hearing.
  2. Mr Jafar relies upon CPR Rule 54.14(1) which provides:

“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”.

That provision was reinforced in the order of HHJ Serota QC. Mr Jafar submitted that the obligation is mandatory, and the Court should exercise its general power to strike out for non – compliance under Rule 3.4(2)(c), albeit there is no automatic sanction applicable to this rule. He referred to the approach taken by this court in R ( on the application of Jasbir Singh and ors) v SSHD [2013] EWHC 2876 (Admin) to successive extensions of time, and submitted that no good reason has been given for the failure to serve detailed grounds in time, and that it is a substantial breach of the rule and order which justifies the striking out of the defence.

  1. In response Miss Anderson has referred to R (on the application of RA-Nigeria) v SSHD [EWCA] 4073 (Admin) where the same point was raised, as in this case without notice at the outset of the hearing. Andrew Thomas QC considered the cases of Mitchell v News Group Newspapers (2013) EWCA Civ 1537, the three-stage test outlined in  Denton  v TH White Ltd (2014) EWCA Civ 906, and R (on the application of Mohammadi) v SSHD (2014) EWHC 2251 (Admin). He rejected the application to strike out the claim on the basis that there was no identifiable prejudice to the claimant, the defendants response was set out in summary grounds of defence which went into some detail, and whilst compliance with rules of court is important, he agreed with the observations in Mohammadi, that in judicial review claims the public interest will usually be a highly significant consideration. He found non – compliance to be of form rather than substance, and that debarring the defendant from responding to the claim was not in the public interest, which lay in proper consideration of the case on its merits.
  2. In this case, the defendant did serve detailed grounds, albeit late. Whilst there is some fleshing out of the points raised in the summary grounds served one day late, there is nothing of real substance which is different. No response was filed to the summary grounds, the detailed grounds were served well in advance of this hearing, and no response was served at that stage or indeed before this hearing. Mr Jafar can point to no real prejudice. Taking all the circumstances into account, as in RA Nigeria the public interest lies in permitting the defendant to respond to the claim and the application to debar the Secretary of State from doing so is refused. Insofar as it is necessary to do so, time is extended in respect of the summary grounds and detailed grounds until 30 September 2012.

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