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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 2108 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MARTIN SPENCER
| THE QUEEN (on the application of THE ASBESTOS VICTIMS SUPPORT GROUPS' FORUM UK)
|- and -
|THE LORD CHANCELLOR
Jonathan Auburn and Rupert Paines (instructed by Government Legal Department) for the Defendant
Hearing dates: 8-9 July 2020
Crown Copyright ©
Lord Justice Bean and Mr Justice Martin Spencer :
a) To preserve and protect the physical and mental health of sufferers of asbestos-related illness, through the provision of financial assistance, support, education and practical advice; and
b) To advance the education of the general public in all areas relating to asbestos-related illnesses including but not exclusively by providing information about the hazards of asbestos in the environment.
The Forum represents a number of different asbestos support groups throughout the United Kingdom and acts as a representative body for those afflicted with asbestos-related diseases in respect of legal and political issues arising from such diseases.
"In some areas of civil litigation costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice."
"Section 44 a costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a condition fee agreement.
Section 46 a costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under sub-section (2)."
"Sections 44 and 46 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has a) carried out a review of the likely effect of those sections in relation to such proceedings, and b) published a report of the conclusions of the review."
"Given the importance of the changes we are making in part 2, given the concerns that have been expressed about their impact on access to justice, and given that these matters may look very different indeed in some legal contexts in the light of experience after these changes are made, it is surely wise to add to the Bill a power for the Lord Chancellor whereby it would be entirely within his discretion to modify the effect by excluding categories of cases."
"I understand the noble Lord's intentions. I understand that he thinks it sensible to allow for exceptions to be made at a later date. However, we are legislating now and [on] what we consider to be a fair and overdue basis. Funding arrangements need a degree of certainty. Claimants and defendants need to be able to plan and adapt to the new regime. The amendment would only create uncertainty. Rather than settling the issue of CFAs, as this bill seeks to do, the amendment would open the door to constant campaigning and calls for individual exceptions. The amendment may be well-intentioned but it is fraught with difficulty. It would provide uncertainty and confusion where we are seeking to introduce clarity. It would provide increased costs where we are seeking to reduce costs. It is wrong in principle and unnecessary. I urge the noble Lord to withdraw it."
"Parliament was emphatic on this point: it firmly rejected the possibility of allowing for the discretionary extension of categories of claim to be excluded from the LASPO Part 2 reforms at a later date."
LASPO and the Post Implementation Review
"The Government has been given little indication at the present that the LASPO part 2 reforms are resulting in difficulties in other cases to which they already apply. The position will be monitored as part of the intended post-implementation review of the LASPO Act within three to five years of implementation."
"The content and purpose of a post-implementation review is different to a post legislative memorandum: post-implementation reviews are primarily concerned with assessing the reforms from an analytical perspective, in the manner of an impact assessment, rather than reporting certain elements of the act's implementation and operation. As such, the analysis provided in the preliminary assessment sections of this memorandum is at a high level. The Ministry of Justice intends to undertake a more thorough and substantive analysis in the post-implementation review." [Emphasis added]
"Post-implementation reviews are policy led with analytical support. Data and research evidence will be used, so far as possible, to understand impacts of the reforms.
We do need to acknowledge the limitations of the hard data and what it can tell us.
- The reforms are a delicate set of balances and counter-balances.
- Our management information is comparatively blunt to measure the separate components in detail.
- We need to avoid making spurious inferences about causality.
We will be using:
1. Courts' data on claims volumes and processes.
2. Publish data on pre-court claims and settlements.
3. Professor Fenn's assessment of litigation cost impacts.
4. Other published research data sources.
5. Expert opinion and responses to our request for evidence."
"litigation costs and outcomes (damages). These are not captured by MoJ directly and not widely shared for commercial reasons. However, an independent analysis of claimant and defendant cost impacts has been carried out by Professor Paul Fenn and this will be an important resource for the review."
"The Ministry of Justice is committed to undertaking a post implementation review (PIR) of part 2 of [LASPO]. It is clearly good practice to examine whether the legislation has met its objectives, and whether there are unintended consequences that need addressing. That is what this PIR is intended to deliver. We are publishing a survey to seek stakeholder views: we hope as many people as possible will complete it. Where possible, respondents should read this initial assessment, which provides steers on issues on which we would particularly welcome comment. The Civil Justice Council is holding a stakeholder conference which will take place while the survey is live and be a focal point of the PIR. a report will be prepared by MoJ officials later in 2018 drawing on views of stakeholders and the available data. It would then be for MoJ ministers to decide what further actions to take. It should be noted that the MoJ has already prepared a post legislative memorandum on the part 2 reforms, which stated that 'Whilst there has inevitably been comment on points of detail, we are not aware of significant overarching concerns arising from the implementation of part 2.'" [Emphasis added]
"In particular, we have very limited access to data on the costs of litigation as this is typically held by private firms. If you wish to provide analytical evidence or have any queries, please email me to discuss this further."
The online survey asked what types of claims the responder dealt with and what was their experience of the impacts of the abolition of the recoverability of success fees (section 44) and the abolition of the recoverability of ATE insurance premiums (section 46), together with the introduction of qualified one-way costs shifting in personal injury claims. The final question asked:
"Overall, what has been your experience of the combined impacts of the LASPO part 2 reforms?"
"The prospect of having success fees deducted from damages awards will further discourage seriously ill claimants from pursuing legal action where the benefits of doing so may seem marginal. [but] while we have no firm documentary evidence on how law firms have responded to the changes to the rules on recovering success fees, we believe it is likely that there have been changes that have impacted adversely on asbestos victims."
In answer to the question "Overall, what has been your experience of the combined impacts of the LASPO part 2 reforms?" He stated:
"We have seen no evidence that the reforms under the LASPO Act have resulted in wider choice or cheaper litigation for asbestos victims pursuing claims for civil compensation. If anything there are probably less firms pursuing this line of work as cases become less profitable and more risky. the only direct effect of the reforms relating to success fees and ATE insurance premiums that we have seen is that asbestos victims are now experiencing deductions from their compensation that did not happen before the LASPO reforms. In addition we are no longer able to reassure asbestos victims that there are no financial risks involved in pursuing a claim for civil compensation. These reforms are more likely to deter victims with meritorious cases from seeking justice."
Mr Dring was not, however, able to provide the MoJ with any data as to the effect of the LASPO reforms particularly as they related to the victims of asbestos related diseases. The response was more in the nature of comments on the effect of the LASPO reforms generally as they would impact on all personal injury victims rather than indicating any peculiar, measurable effect on asbestos victims in particular (excluding, of course, mesothelioma cases).
"11.4 By contrast and with great reluctance, as a result of the commercial sustainability, there is an increased reluctance amongst claimant lawyers to run potentially meritorious but difficult claims for asbestosis, pleural thickening and lung cancer because of the combined effects of sections 44 and 46 of LASPO.
11.5 A big difficulty is created by QOCS as the claimant can still be liable to pay the costs of the successful defendant.
11.6 Asbestosis, pleural thickening and lung cancer cases are all treated as divisible conditions. This means that frequently claimants have to bring proceedings against multiple employers. Often as a result of employers' liability insurance not being in place, it is not possible to bring every possible tortfeasor into the proceedings."
The effect of LASPO was stated at 11.8 to be:
"Since LASPO the claimants suffering from asbestosis, pleural thickening and lung cancer no longer have [the protection of ATE insurance] which means they lose damages even when successful, even possibly to the point of very small amounts of compensation being recovered or no compensation being recovered at all."
As part of their submission, Leigh Day set out, in appendix A 16 case examples of which five, cases 2, 3, 6, 7 and 8 related to asbestos victims. They also exhibited to their submission various other documents including a statement from Mr Frank Burton QC, a leading personal injury lawyer, and a statement which Ms Bains had made on 10 December 2014 in the case of Coventry v Lawrence.
"I have turned down several high value class actions and high value individual cases because there is simply no reserve available any more for me to subsidise unsuccessful cases on liability by the success fees obtained from successful cases."
He considered that the LASPO reforms were contributing to a "stultifying effect on the development of the common law because cases which are complex and difficult in the field of personal injury are much less likely to be litigated." He stated that the effect of the reforms appeared to have resulted in a decline of approximately 13% per annum in the first four years after LASPO namely 21,000 each year in personal injury claims under £25,000 and from January to March 2018 personal injury cases were further down by 7%.
"We are interested in receiving further data and evidence that will help to indicate impacts for the final review. In particular we have very limited access to data on the costs of litigation as this is typically held by private firms."
Mr Wright indicates that the submission of data was a key means by which the MoJ were gathering information for the final PIR. He says:
"It is disappointing that neither the Claimant nor Leigh Day contacted Mr Smeeton [the contact for the provision of submissions] to discuss providing quantitative data despite it being made clear that we were inviting data for the PIR, as outlined above. It would have been very helpful to have received anonymised data with a significant sample size to compare the level of damages, case length, outcomes, costs and deductions for asbestos disease claims versus mesothelioma, for example, to analytically demonstrate the full impact of the part 2 reforms on mesothelioma versus other asbestos claims. It is disappointing that Leigh Day did not provide us with any detailed data and neither did they address specific questions set out in the initial assessment. For example, one of the issues on which we sought information was the level of success fees being charged, and we set out the reason for this."
"In summary, we, Leigh Day, will say the effect of LASPO is a restriction to access to justice, because there is no success fee recoverable from the defendant, it means that there is no incentive on the defendant to reach early settlement. It's unjust to deduct 25% from the claimant's modest damages to pay for legal fees. The effect of this is to make cases uneconomic for solicitors and barristers and therefore makes it much more difficult for clients to actually get legal representation. It is not just Leigh Day lawyers who are saying this, it is QCs such as Frank Burton QC, he's an eminent QC. Mr Burton's confirmed in his statement that he has actually turned down several cases, and we confirm, as Leigh Day, that as a result of the depleted reserve funding we are more cautious on taking on cases."
Daniel Easton of Leigh Day also attended the meeting and emphasised the view of the firm on the impact of LASPO on asbestos cases which are not mesothelioma. He referred to two points made by Mr Dring about the deduction of success fees from damages:
"Now clearly that's a consequence of LASPO, if we take ourselves back to pre-LASPO that did not happen. Asbestos victims, lung cancer victims, they are all entitled to seek a recovery of the success fee and their ATE premiums from the defendant and that enabled, in most cases, the clients to receive 100% of their compensation. We think this is a serious step backwards and the changes in LASPO to that category of people."
Mr Easton also referred to changes in the civil court procedure rules concerning costs budgeting as affecting claimants with under five years life expectancy. Another attendee, Mr Patrick Walsh of Leigh Day, made a point about the effect of the decision of the Court of Appeal in Heneghan where it was decided that cases of asbestos related lung cancer are indistinguishable from cases of mesothelioma and that such cases ought therefore to be dealt with in LASPO in the same way that mesothelioma cases are dealt with.
"In conclusion, LASPO appears to have an effect on settlement behaviour and on the overall costs of litigation. There are fewer claims, and their base costs, damages and legal proceedings have all diminished. To some extent these effects are consistent with the stated objectives of the LASPO part 2 legislation to 'reduce the costs of civil litigation' and 'discourage unmeritorious claims' and to 'encourage early settlement'. On the other hand there may be some concern as to whether 'parties with a valid case can still bring or defend a claim' and whether those parties are being fairly compensated for their losses."
Their researches appeared to show that the 10% uplift in general damages introduced for post-LASPO CFA cases did not appear to have prevented an overall drop in real damage levels. They then state:
"These interpretations are not necessarily the only ones that our results could support, though, as noted above, they can be linked into some economic models and empirical results. Also they do not have any normative implications (i.e. about whether the reforms had been 'good' or 'bad'); e.g. trading off lower damages for faster, cheaper resolution of claims may be welcomed by some and not by others. Similarly it is natural for lawyers (as other workers) to respond to the incentives they face. It is clear that further work, on more detailed data, would be required to help interpret our results, their desirability and the precise contribution of different elements of LASPO."
In short, the researches of Messrs Fenn and Rickman were generally supportive of the desired effect of LASPO in reducing the costs of civil litigation. They found that although this was at some expense of access to justice, that result was to be expected if the effect of LASPO was to drive out unmeritorious claims.
1. Reducing the costs of civil litigation
2. Rebalancing costs liabilities between claimants and defendants
3. Promoting access to justice at proportionate cost
4. Encouraging early settlement
5. Reducing unmeritorious claims
The review then considered the feedback received on the five statutory reforms contained within LASPO including the non-recoverability of success fees and the non-recoverability of ATE insurance premiums. At section 10, the PIR set out the data analysis contained within the review including the analysis by Messrs Fenn and Rickman. In the executive summary the PIR stated:
"17. The high-level available data on the volumes of court claims suggests that the number of claims has reduced slightly and in a manner consistent with the Government's objective of reducing unmeritorious claims (objective 5) and not to an extent that would indicate a negative effect on access to justice (objective 3).
18. Based on the evidence received as part of the PIR the government considers the part 2 reforms to have been successful in achieving the principle aim of reducing the costs of civil litigation (objective 1). The evidence shows that in a range of personal injury claims (including clinical negligence claims), costs have reduced significantly (circa 8%-10%) and early settlement has also improved (objective 4). A definitive judgment on the impact of unmeritorious claims cannot be made at this time but the claims volumes data, the changes in financial incentives to CFA, the test of fundamental dishonesty for QOCS and anecdotal stakeholder feedback suggest there has been an overall decline in unmeritorious claims (objective 5). The government considers that, on balance, the evidence suggests the part 2 reforms have successfully met their objectives. The Government doesn't therefore propose any amendments to the primary legislation."
a) First, within the section which considers the non-recoverability of CFA success fees, it is stated at paragraph 76:
"However there were a handful of calls by claimant lawyers to overturn section 44, particularly for diseases such as asbestosis, and to reintroduce recoverability for success fees to protect the claimants damages (paragraph 76)."
b) In the same section, at paragraph 81, the PIR stated:
"One claimant lawyer firm [clearly a reference to Leigh Day] noted that in CPR (Practice Direction 3e2(b)) claimants with 'a limited or several impaired life expectation of five years or less' were treated differently for costs budgeting purposes and suggested that an exemption for the same category of the claimants with regard to the recoverability of success fees and ATE premiums would benefit claimants with serious disease claims such as asbestosis" (paragraph 81)."
c) In the section considering the non-recoverability of ATE insurance and the introduction of QOCS for personal injury cases, it was stated:
"94. Several claimant lawyer respondents referred to the case of Cartwright v Venduct Engineering which relates to the entitlement of a successful defendant to enforce and adverse costs order against damages recovered by a claimant from another unsuccessful co-defendant. Concern was expressed that QOCS protection could potentially be lost in multi-defendant cases which could have a particular impact in divisible disease cases such as asbestosis."
"205. That said, the data are inconclusive and the differing results potentially indicate that part 2 of LASPO may have had differing impacts in different categories of law."
Graph 7 (average general damages often in road traffic accident claims), graph 8 (average general damages in public liability claims) and graph 9 (average general damages in employer liability accident claims) all appear to show an increase since the LASPO reforms came into effect. However, graph 10 (average general damages in employer liability disease only claims), showed a fall in damages since April 2013, but there appears to have been no consideration within the PIR of the somewhat stark difference between graph 10 on the one hand and graph 7, 8 and 9 on the other.
The claim for judicial review
a) Assess the reforms from an analytical perspective in the manner of an impact assessment;
b) Examine whether there were unintended consequences from the legislation that needed addressing; and
c) Undertake a more thorough and substantive analysis than was contained in the PLM.
They alleged that the PIR had failed to contain any thorough or substantive analysis of the effect of LASPO or any assessment remotely akin to an impact assessment. They criticised the failure of the PIR's conclusions to refer at all to the deductions from compensation experienced by asbestos victims or to the fact that victims with meritorious cases are being deterred from seeking justice. Nor, it was said, do the conclusions make reference to the alleged lack of evidence that the LASPO reforms had resulted in wider choice or cheaper litigation for asbestos victims. It was contended that the Fenn and Rickman analysis was an insufficient basis for the general conclusion in the PIR that the part 2 reforms had been successful when measured against their objectives: in fact, it was alleged, the data analysis fell well short of meeting the Defendant's stated objective of assessing the reforms from an analytical perspective in the manner of an impact assessment or of constituting a more thorough and substantive analysis.
"The claimant's evidence explained that asbestos victims are now experiencing deductions from their compensation that did not happen before the LASPO reforms and that victims with meritorious cases are being deterred from seeking justice. We do not expect it to be disputed that these are unintended consequences of LASPO. It is also plain, we contend, that they need to be addressed, given the significant disadvantage now faced by a substantial cohort of asbestos victims and the chilling effect on access to justice."
The various letters did not cause the Defendant to change his position and the allegations and assertions in the pre-action correspondence were reproduced in the detailed grounds.
"1. D's failure to discharge its obligation to carry out an adequate "review" of the impact of the LASPO Part 2 reforms; and
2. D's decision not to make any changes to the LASPO reforms."
a) the Defendant's failure to discharge its obligation to carry out an adequate "review" of the impact of the LASPO Part 2 reforms under the title "the Post-Implementation Review of Part 2 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO); Civil Litigation Funding and Costs (February 2019 CP38); specifically in relation to the adverse impacts of the reforms on a specific but substantial cohort of the Claimants, viz. asbestosis disease sufferers (i.e. asbestos-related lung cancer, asbestosis and asbestos-related non-malignant pleural thickening). Such cohort may amount, on the statistical evidence of the HSE (published October 2018) c. 3500 cases per year;
b) The Defendant's decision following such review not to make any changes to the LASPO reforms and in particular not to extend the exclusion in Section 48 LASPO for diffuse mesothelioma proceedings to cases of the very similar (in terms of consequence) asbestos related lung cancer or pleural thickening and/or asbestosis having regard to the severe adverse impact of the LASPO Part 2 reforms on Claimants seeking to bring such claims leading to;
i) the denial of full compensation for such Claimants;
ii) the denial of proper access to justice for such Claimants."
The parties' submissions
Substantive legitimate expectation: the law
"It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is 'clear, unambiguous and devoid of relevant qualification': see Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd  1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called 'the macro-political field': see R v Secretary of State for Education and Employment, Ex p Begbie  1 WLR 1115, 1131."
41. There is first an overall point to be made. It is that both these types of legitimate expectation are concerned with exceptional situations (see Lord Templeman in Preston at 864; compare ABCIFER  QB 1397 per Dyson LJ at paragraph 72). It is because their vindication is a long way distant from the archetype of public decision-making. Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO  EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy. This entitlement in truth, a duty is ordinarily repugnant to any requirement to bow to another's will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult.
42. But the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker's proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker's right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations the two kinds of legitimate expectation we are now considering something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is as well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that "[t]he categories of unfairness are not closed, and precedent should act as a guide not a cage".
43. Authority shows that where a substantive expectation is to run the promise or practice which is its genesis [it] is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured. Lord Templeman in Preston referred (866 867) to "conduct [in that case, of the Commissioners of Inland Revenue] equivalent to a breach of contract or breach of representations".
44. I will give two concrete instances from the cases. In Ex p Khan  1 All ER 40 the Home Office promulgated specific criteria for the admission of children into this country for the purposes of adoption here. The appellant sought entry for his prospective adoptive child. He relied in terms on the published criteria which he fulfilled. But he found his application blocked by a further, unannounced criterion which he did not satisfy. This court allowed his appeal.
45. Ex p Coughlan is a particularly strong case. Miss Coughlan was a very severely disabled lady. She and seven comparably disabled patients had been given a clear promise by the health authority that a particular facility, Mardon House, would be their home for life. But the health authority decided to close Mardon House which had ceased to be financially viable. The court said this at paragraph 86:
"[The health authority's promise of a home for life] was an express promise or representation made on a number of occasions in precise terms. It was made to a small group of severely disabled individuals who had been housed and cared for over a substantial period in the Health Authority's predecessor's premises at Newcourt. It specifically related to identified premises which it was represented would be their home for as long as they chose. It was in unqualified terms. It was repeated and confirmed to reassure the residents. It was made by the Health Authority's predecessor for its own purposes, namely to encourage Miss Coughlan and her fellow residents to move out of Newcourt and into Mardon House, a specially built substitute home in which they would continue to receive nursing care. The promise was relied on by Miss Coughlan. Strong reasons are required to justify resiling from a promise given in those circumstances. This is not a case where the Health Authority would, in keeping the promise, be acting inconsistently with its statutory or other public law duties. A decision not to honour it would be equivalent to a breach of contract in private law."
46. These cases illustrate the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced. I should add this. Though in theory there may be no limit to the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good. There are two reasons for this, and they march together. First, it is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to a diverse class. As Lord Woolf MR said in Ex p Coughlan (paragraph 71):
"May it be... that, when a promise is made to a category of individuals who have the same interest it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict?"
The second reason is that the broader the class claiming the expectation's benefit, the more likely it is that a supervening public interest will be held to justify the change of position complained of "
"35. There are two different ways in which a legitimate expectation claim can arise. The expectation can be generated by an express promise: see AG of Hong Kong v Ng Yuen Shiu  2 AC 629. The principle behind the promise cases was broadly summarised by Lord Neuberger in United Policyholders Group v A-G of Trinidad and Tobago  UKPC 17 at paragraph 37 as being based on the proposition that "where a public body states that it will do (or not do) something, a person who has reasonably relied on the statement should, in the absence of good reasons, be entitled to rely on the statement and enforce it through the courts". Secondly, a legitimate expectation can be generated by a practice, even where there has been no promise or assurance that a particular procedure will be followed: see for example CCSU v Minister for the Civil Service  AC 374.
36. These two types of case are different, and it is important to keep their differences in mind. Many of what might be termed the practice cases, such as those concerned with a failure to consult prior to a change of policy or procedure, stress the omission of any relevant promise or assurance: see, for example, the decision of this court in R (Bhatt Murphy) v Independent Assessor  EWCA Civ 755. In my view, the present case is a straightforward promise case, so the different considerations introduced by the practice cases do not arise here.
37. The two principal promise cases are AG of Hong Kong, and R (Lumba) v Secretary of State for the Home Department  1 AC 245. In the former, a senior immigration officer announced that government policy was that each illegal entrant from Macau would be interviewed and his case 'treated on its merits'. The applicant was detained and not given the opportunity of making representations as to why he should not be removed. The House of Lords held that, where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise, provided the implementation did not conflict with the authority's statutory duties. Lord Fraser of Tullybelton said (page 638 E G):
"The justification for it is primarily, that when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representation from interested parties and as a general rule that is correct.
In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, it is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on 28 October, that each case would be considered on its merits "
38. In Lumba, the Supreme Court arrived at the same answer, albeit by a different route (indeed, it appears that AG of Hong Kong was not cited to them). In that case, the published policy was that prisoners who were foreign nationals would be detained only when their continued detention was justified. However, between 2006 and 2008 the Home Secretary had applied an unpublished policy of blanket detention. Lord Dyson JSC said at paragraph 26 that "a decision-maker must follow his published policy unless there are good reasons for not doing so". This statement of principle was not linked to specific knowledge of the policy on the part of any individual. He went on:
"35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay  AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. In R (Anufrijeva) v Secretary of State for the Home Department  UKHL 36,  1 AC 604, para 26 Lord Steyn said:
"Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.
36. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision. I would endorse the statement made by Stanley Burnton J in R (Salih) v Secretary of State for the Home Department  EWHC 2273 at para 52 that "it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute." At para 72 of the judgment of the Court of Appeal in the present case, this statement was distinguished on the basis that it was made "in the quite different context of the Secretary of State's decision to withhold from the individuals concerned an internal policy relating to a statutory scheme designed for their benefit". This is not a satisfactory ground of distinction. The terms of a scheme which imposes penalties or other detriments are at least as important as one which confers benefits. As Mr Fordham puts it: why should it be impermissible to keep secret a policy of compensating those who have been unlawfully detained, but permissible to keep secret a policy which prescribes the criteria for their detention in the first place?"
39. Accordingly, there is the highest possible authority for the proposition that, if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn (United Policyholders), or implementation interferes with that body's other statutory duties (A-G of Hong Kong)."
Conclusion on substantive legitimate expectation
a) This was not a clear and unambiguous promise of any kind, and certainly not a clear and unambiguous promise to deal with the effects of LASPO on each significant class of litigation (whether ARDs or otherwise) individually;
b) It was not a specific undertaking directed at a particular individual or group;
c) The failure to deal with the concerns raised by the Claimant and Leigh Day was not equivalent in any sense to a breach of contract or breach of representation;
d) It cannot be described as unfairness amounting to an abuse of power;
e) In any event, it appears to us to be self-evident that the degree to which the PIR could be a thorough and substantive analysis would depend on the quality of the data available to the MoJ at the time of the review.
Failure "to engage conscientiously"
"A consideration of whether a non-statutory consultation process such as this contravened the requirements of procedural fairness will always be fact and context sensitive. As Burnett LJ identified in the London Criminal Courts Solicitors' Association case, the test is whether the process has been so unfair as to be unlawful
62. Turning next to the question of whether appropriate consideration was given to the consultation responses, we do not accept that that obligation translates into an obligation on the Minister to adopt the submissions made to him by respondents. In our judgment the Minister was entitled to consider the whole range of responses made to him, (together with all relevant information), and to form his own conclusion independently of the views of any particular section of consultees or indeed the views of his own advisers. The Response at paragraph 20 appears to us to represent the balance struck by the Minister after weighing up the various submissions made to him.
63. Insofar as the judge was critical of a failure of the Response document to explain why a threshold of three units was not used instead of 10 units, as had been mooted at one stage, we do not consider that is was necessary for the Secretary of State to descend to that level of particularity. The requirements of a fair consultation do not require that sort of detailed analysis of options before the Minister. As Silber J observed in R (Maureen Smith) v East Kent Hospital NHS Trust  EWHC 2640 (Admin) at paragraph 78 "There is no obligation for a party to consult on each and every item of detail when there is a series of different models available as options." Moreover, the observations of Lord Woolf in Coughlan cited above reinforce this point. Those observations, it seems to us, are equally applicable to the process of consideration of consultation responses."
UPON the Claimant's claim for judicial review dated 21 May 2019
AND UPON permission to bring judicial review proceedings being granted by Mrs Justice Steyn DBE on 6 December 2019
AND UPON a costs capping order being made by Mr Justice Martin Spencer on 27 April 2020 (the "CCO")
AND UPON hearing Leading Counsel for the Claimant and Counsel for the Defendant
IT IS ORDERED THAT:
1. The claim for judicial review is dismissed.
2. Permission to appeal to the Court of Appeal is refused.
3. The Claimant is to pay the Defendant's costs of the proceedings, summarily assessed in the sum of £5,000 pursuant to the CCO, within 14 days of the date of this Order.