The High Court has taken the unusual step of granting an application for strike out in judicial review proceedings, which has highlighted the fact that judicial review does not exist to decide claims that have become academic.
Judicial review is the procedure by which the courts examine the decisions of public bodies to ensure that they act lawfully and fairly. Strike out is a power that enables the court to dismiss the case of a party to legal proceedings, either following the application of another party to those proceedings or of its own initiative.
In R (Hussain) v Secretary of State for Health and Social Care [2022] EWHC 82 (Admin), Mr Hussain brought a judicial review claim against the Secretary of State for Health and Social Care (SoS), concerning the ongoing prohibition of collective worship that had initially been imposed as a result of the COVID-19 pandemic. The prohibition had been maintained despite certain settings being permitted to re-open, which Mr Hussain argued was unlawful. In separate judicial review proceedings decided after Mr Hussain had been granted permission, the High Court refused permission for another claim against the SoS concerning the legality of the prohibition. The Court of Appeal subsequently upheld the High Court’s decision in that case. The SoS duly applied to strike out Mr Hussain’s claim on the basis that the claim had become academic as result of the decision in the other case. The High Court granted the SoS's application, holding that the claim was academic and that there was no good reason in the public interest to determine its legal merits.
This decision is interesting for a couple of reasons. First, the case provides useful discussion and analysis of the court's handling of a strike out application in judicial review proceedings. As the High Court stated, this is rare and will only be granted in exceptional circumstances in a "clear-cut case of a post-permission development which means the claim has lost its viability". Perhaps more significantly, it highlights the fact that in judicial review the parties are under a duty to re-evaluate the position if there is a material change in circumstances, and where a claim has become academic, the court may decline to determine its legal merits.
This latter point follows a line of case law – including Cowl v Plymouth CC (Practice Note) [2002] 1 WLR 803) and R(C) v Nottingham City Council [2010] EWCA Civ 790 – in which it has been held that the court does not exist to decide moot points and where there is no useful purpose to be served by litigation then it should not be permitted to continue.
The decision in R (Hussain) should afford a degree of comfort that the court is not prepared to entertain claims that subsequently become academic and there are mechanisms in place that allow such claims to be dismissed at an early stage.
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