The recent case of R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 provides guidance on the meaning, interpretation and purpose of classifying an unsuccessful application
The recent case of R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 provides guidance on the meaning, interpretation and purpose of classifying an unsuccessful application for judicial review as "totally without merit" at the permission stage.
In the government's first wave of amendments to the judicial review procedure in 2013, the right of an unsuccessful judicial review applicant to an oral renewal hearing was removed where their claim is considered to be "totally without merit" on the papers. This restriction is now incorporated in CPR 54.12. The sole remaining recourse of a claimant whose claim is considered to be TWM is to the Court of Appeal.
In this case, the appellant applied for leave to remain in the UK. This was refused. The appellant subsequently applied for judicial review of this decision. The Administrative Court refused permission for her claim to proceed in August 2013, adding that her case was TWM.
The appellant was granted permission to appeal to the Court of Appeal in order to challenge the Administrative Court's interpretation of TWM.
The appellant argued that a finding of TWM should not be made unless the claim was "so hopeless or misconceived" that a claimant would risk being issued with a civil restraint order if they made such applications persistently. This interpretation relied to some extent on Practice Direction 3C (which supplements CPR 3.11), which states that civil restraint orders may be issued against litigants who repeatedly issue claims which are deemed TWM. The appellant had, it is understood, made no previous TWM claims to the Court.
The Court reviewed the legal development and function of TWM in judicial review applications. It reached the view that the purpose of TWM in judicial review was "not simply [for] the prevention of repetitive applications or the control or abusive or vexatious litigants", but to relieve public authorities and the Court of the administrative burden of an increasing number of "hopeless applications". TWM, it was held, meant "no more and no less than 'bound to fail'". The meaning of TWM in judicial review cases was not connected to the award or issue of civil restraint orders, or the prevention of repetitive claims; rather, it should be viewed solely in the context of the case in question and its respective chances of success.
The Court added two safeguards to this approach: (1) that a judge must be confident, when certifying an application as TWM, that the case is truly bound to fail and have in mind the seriousness of the issue and the consequences of his decision; and (2) the claimant still had a right to apply to the Court of Appeal who "will approach the application independently and with the same care".
In the government's first wave of amendments to the judicial review procedure in 2013, the right of an unsuccessful judicial review applicant to an oral renewal hearing was removed where their claim is considered to be "totally without merit" on the papers. This restriction is now incorporated in CPR 54.12. The sole remaining recourse of a claimant whose claim is considered to be TWM is to the Court of Appeal.
In this case, the appellant applied for leave to remain in the UK. This was refused. The appellant subsequently applied for judicial review of this decision. The Administrative Court refused permission for her claim to proceed in August 2013, adding that her case was TWM.
The appellant was granted permission to appeal to the Court of Appeal in order to challenge the Administrative Court's interpretation of TWM.
The appellant argued that a finding of TWM should not be made unless the claim was "so hopeless or misconceived" that a claimant would risk being issued with a civil restraint order if they made such applications persistently. This interpretation relied to some extent on Practice Direction 3C (which supplements CPR 3.11), which states that civil restraint orders may be issued against litigants who repeatedly issue claims which are deemed TWM. The appellant had, it is understood, made no previous TWM claims to the Court.
The Court reviewed the legal development and function of TWM in judicial review applications. It reached the view that the purpose of TWM in judicial review was "not simply [for] the prevention of repetitive applications or the control or abusive or vexatious litigants", but to relieve public authorities and the Court of the administrative burden of an increasing number of "hopeless applications". TWM, it was held, meant "no more and no less than 'bound to fail'". The meaning of TWM in judicial review cases was not connected to the award or issue of civil restraint orders, or the prevention of repetitive claims; rather, it should be viewed solely in the context of the case in question and its respective chances of success.
The Court added two safeguards to this approach: (1) that a judge must be confident, when certifying an application as TWM, that the case is truly bound to fail and have in mind the seriousness of the issue and the consequences of his decision; and (2) the claimant still had a right to apply to the Court of Appeal who "will approach the application independently and with the same care".