Parsipoor v Secretary of State for the Home Department [2011] EWCA Civ 276

[2011] EWCA Civ 276

Case Nos: C4/2010/1847 & C4/2010/1845

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

KEITH J AND HHJ LANGAN QC

(sitting as a Judge of the High Court)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/03/2011

Before

LORD JUSTICE PILL

LORD JUSTICE LLOYD

LORD JUSTICE RIMER

Between

Bijan ParsipoorAppellant

The Secretary of State for the Home DepartmentRespondent

Sardar Ahmed Salih & Shelan RezaAppellants

The Secretary of State for the Home DepartmentRespondent

Martin Westgate QC and Ranjiv Khubber (instructed by Ben Hoare Bell LLP) for Appellants

Julie Anderson (instructed by the Treasury Solicitor) for Respondent

Hearing Hearing date : 10 th February 2011

Judgment

[1]These are appeals brought by Bijan Parsipoor (“BP”) and Sardar Ahmed Salih and Shelan Reza (“SAS”) (“the appellants”) against decisions of the Administrative Court by which their applications for judicial review of decisions of the Secretary of State for the Home Department (“the Secretary of State”) under section 4 of the Immigration & Asylum Act 1999 (“the 1999 Act”), for which permission had been given, were refused without an oral hearing. The issue is as to the scope of the Secretary of State’s powers under section 4 to provide support to failed asylum-seekers. Permission to apply for judicial review was granted by Langstaff J on 24 March 2010.

The background

[2]There was a series of rulings between 15 April 2010 and 11 June 2010 as a result of which the applications for judicial review were finally decided and refused. Permission to appeal has been granted, not to challenge the merits of the decision on the section 4 issue, but to challenge the making of a final decision without the applicants for judicial review, or their representatives, having an opportunity to address the court at an oral hearing. I will describe the sequence of events but the bringing of the appeal on that ground does not depend on precise analysis of the orders made. Miss Anderson, for the Secretary of State, accepted that a relevant permission has been granted.

[3]Permission having been given, the two claims were due to be heard on 23 April 2010. BP was granted indefinite leave to remain on 30 March 2010 and SAS on 9 April 2010. As a result, they were no longer entitled to support under section 4 of the 1999 Act. On a consideration of the papers, Keith J, on 15 April 2010 expressed the view that the issues raised “are academic so far as [the appellants] are concerned”. The issue of principle which had been raised was to be resolved in Kiana v Secretary of State for the Home Department heard in the Administrative Court on 15 April 2010. On behalf of the claimants, it had been submitted in writing to Keith J, echoing statements made by Langstaff J when granting leave, that the issue was fact specific and a range of cases should be before the court on the section 4 issue. When Langstaff J granted leave, he made reference to the range of factual situations which could arise under section 4. There were thought to be about 27 similar cases.

[4]In his directions on 15 April, Keith J did not accept that submission. He stated:

“Accordingly, unless the parties can agree an appropriate consent order in the light of this note, the cases will be listed for hearing on 23 April, when I shall make such orders for their disposal as I think are appropriate.”

[5]On 22 April, Keith J again expressed on paper the view that there was no need to decide the applications, citing Lord Slynn in R v Secretary of State for the Home Department Ex Parte Salem

[1999] 1 AC 450

, at page 457. Lord Slynn stated:

“. . . appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so.”

Keith J directed:

“For these reasons, these cases should be listed for disposal tomorrow, unless in the light of this note the parties can agree on the terms of a consent order disposing of the cases.”

It was accepted that listing for disposal is a formality and does not include a right to an oral hearing.

[6]Keith J ordered the hearing on 23 April to be vacated and that the cases be adjourned pending the publication of the transcript in the case of Kiana.

The judge added:

“Both parties have 14 days following receipt of the transcript to make written representations as to whether the case should be disposed of or proceed to a full hearing. Representations to be considered by a single judge on the papers.”

Representations to be considered by a single judge on the papers.”

[7]On 24 May 2010, the appellants applied for “an order that the question whether these claims should proceed to a full hearing should be determined at an oral hearing notwithstanding the order of Keith J dated 23 [22] April 2010”. His Honour Judge Langan QC, sitting as a Deputy High Court Judge, refused the application for an oral hearing. The judge construed the order of Keith J as rejecting submissions, first, that whether the claims should be allowed to proceed or be dismissed as academic should be determined at an oral hearing and, secondly, that the appellants should be permitted to make oral representations on the issue of an oral hearing itself.

[8]Having construed the order in that way, Judge Langan stated that he did not “see any basis on which [he] could properly revisit the order of Keith J in the absence of any material change in circumstances”. Judge Langan directed that the papers be put back before a judge on or shortly after 3 June, 2010.

[9]On 11 June, the case came before His Honour

Judge Behrens who, on a consideration of the papers, ordered:

“The application for an oral hearing is refused. Both claims for judicial review are dismissed.”

He stated that he agreed with Keith J “that this case is now academic and that this is not an appropriate case for the court to exercise its discretion to permit such a case to proceed”.

[10]Stanley Burnton LJ granted permission to appeal in respect of the orders of Keith J and Judge Langan QC. He stated:

“However, it seems to me that the decisions in respect of which I have granted permission to appeal raise an issue as to the procedure adopted by the Administrative Court which should be addressed by the Court of Appeal.”

The application for permission to appeal against the order of Judge Behrens on the substantive legal issue was adjourned pending the decision in Kiana which is subject to appeal to this court. The application can subsist only if the present appeal succeeds. Stanley Burnton LJ plainly had in mind that permission should be granted to challenge the refusal of an oral hearing before the claims were finally decided and Miss Anderson has not argued otherwise.

[11]It is common ground that only the issue whether an oral hearing should have been permitted is to be determined in this appeal. The substantive question on section 4, including the question whether the present applications for judicial review should not be determined on the ground that they are academic, is not to be decided. If the appeal is allowed, the applications will be remitted to the Administrative Court to decide, following an oral hearing, what course to take.

[12]What led to the order of 15 April 2010 was an application to the court on behalf of the Secretary of State to discharge the order of Langstaff J granting permission to apply. That was misconceived; CPR 54.13 provides:

“. . . neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed.”

The draft order which accompanied the application did, however, also request that the hearing on 23 April be vacated and the cases listed for disposal. It was requested that the application should be considered without a hearing. The application was made on the form appropriate for applications under CPR 23.

Submissions

[13]For the appellants, Mr Westgate QC submitted that the appellants should have been allowed an oral hearing before their claims for judicial review, for which permission had been granted, were dismissed on 11 June 2010. Part 54 of the CPR deals with judicial review and CPR 54.18 provides:

“The court may decide the claim for judicial review without a hearing where all the parties agree.”

The appellants did not agree to the claim being decided without a hearing and they were entitled to a hearing, Mr Westgate submitted. The rule reflects the fundamental right to an oral hearing of a claim in court before its final determination.

[14]Mr Westgate referred to Al Rawi & Ors v Security Service

[2010] EWCA Civ 482

which concerned the power of a court to order a closed material procedure for the trial of an ordinary civil claim. That is a somewhat different question but, at paragraph 17, Lord Neuberger of Abbotsbury MR stated:

“A further fundamental common law principle is that trials should be conducted in public, and that judgments should be given in public.”

Considering the inherent jurisdiction of the court to develop the common law so far as its procedures are concerned, Lord Neuberger cited Lord Denning MR in Grosvenor Hotel, London (No.2)

[1965] Ch 1210

, 1243C. Lord Denning stated that the Rule Committee:

“Can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land.”

Lord Neuberger added that the course proposed by the defendants in Al Rawi would involve:

“Not merely altering the rules of evidence: it would involve altering what Lord Denning MR called ‘the ordinary law of the land,’ namely . . . fundamental principles of the law of England and Wales.”

[15]Mr Westgate submitted that r 54.18 deals with the point specifically and other rules cannot be relied on to limit its effect. The clear inference is that only where all parties agree may a claim for judicial review be decided without a hearing. It has not been suggested, submitted Mr Westgate, that the attempts to keep alive the claims for judicial review, notwithstanding the grant of leave to apply, were frivolous or abusive. Substantial issues had been raised about whether the claims should be dismissed as being academic. The appellants were entitled to an oral hearing to address a judge who had expressed an intention on paper to dismiss the claims.

[16]For the Secretary of State, Miss Anderson submitted that r 54.18 covers only a decision on the merits of the claim for judicial review. The orders in this case were that the merits of the claim should not be decided. The construction advocated by the appellants was artificial because the natural meaning of “decide” in r 54.18 is to decide the merits of the case.

[17]The Administrative Court is very busy dealing with claims for judicial review, Miss Anderson submitted. Discipline was required both in listing procedures and in considering costs. The opportunity to make written submissions was sufficient, submitted Miss Anderson. Decisions that cases should not be decided on their merits were decisions which the court could make without a hearing. Rule 23.8 provides:

“The court may deal with an application without a hearing if (a) the parties agree as to the terms of the order sought; (b) the parties agree that the court should dispose of the application without a hearing, or (c) the court does not consider that a hearing would be appropriate.”

The court was entitled to make the orders in the present case in exercise of the power in r 23.8(c). Miss Anderson accepted that if she was wrong about the construction and effect of r 54.18, the court could not dismiss the claim for judicial review under an inherent jurisdiction. (b) the parties agree that the court should dispose of the application without a hearing, or (c) the court does not consider that a hearing would be appropriate.”

[18]Miss Anderson was asked to consider other situations in which a decision not to decide the case was taken. A not infrequent example is a challenge to the standing of a claimant to make an application for judicial review in particular circumstances. That will often be determined following the grant of permission (R v Inland Revenue Commissioners, Ex p National Federation of Self-Employed and Small Businesses Ltd

[1982] AC 617

). Miss Anderson accepted that, on her approach, it would be a decision not to decide the case and r 54.18 would not apply. There was power to dismiss the claim without an oral hearing.

Discussion

[19]The absence of the need for an oral hearing when a claim is struck out following an “unless” order was raised. Under r 3.1(3) and r 3.4(2)(c) a court may make a conditional order stating that, unless by a particular date a party complies with a procedural order made by the court, his claim shall be struck out and the claim dismissed. The sanction of striking out or dismissal will be automatic and no further hearing or order of the court is required (Marcan Shipping (London) Limited v Kefalas

[2007] 1 WLR 1864

). However, in making a conditional, or “unless”, order containing such sanctions, a judge should consider carefully whether that sanction is appropriate in all the circumstances of the case (Marcan Shipping, paragraph 36). Opportunity to be heard orally is, in my view, comprehended. Moreover, when considering the application for relief against sanctions, which may in such a case be made under r 3.8 and r 3.9, the court may have regard to the opportunities the party in default had been given to oppose the unless order (Raja v Van Hoogstraten [2004] 4 All E.R. 793, cited in Marcan Shipping at paragraphs 20 - 25 and 45 - 50).

[20]Mr Westgate referred to the decision of this court in Collier v Williams

[2006] 1 WLR 1945

where, amongst other things considered, was the need for an oral hearing when making a range of applications. I agree with Miss Anderson that the issues raised were different from the present issue. Rule 23(8) arose in the context of a submission that when an applicant makes a without notice application which is dismissed without a hearing, the only route of challenge open to the applicant is an appeal.

[21]In that context, Dyson LJ, giving the judgment of the court, commented on the power of the court to act on its own initiative under r 23.8 and r 3.3. Dyson LJ stated, at paragraph 29:

“We turn to the indirect route to CPR 3.3(5). We note at the outset that it is for the court to decide whether to deal with an application without a hearing: "the court may deal with an application…" (CPR 23.8). In considering the scope and meaning of CPR 23.8, we bear in mind two factors. First, generally speaking, there are huge benefits in disposing of routine applications without a hearing. The need to conduct litigation efficiently and proportionately requires that, so far as practicable, applications should be disposed of without a hearing. Routine case management decisions are obvious candidates for such treatment. Secondly, if it were decided by this court that an applicant cannot, as a party affected by an order, invoke CPR 3.3(5), but is obliged to appeal if he wishes to challenge an order made without an hearing, that would deter applicants from asking for their applications to be disposed of without a hearing. We say this because it is necessary to obtain permission to appeal, and it might be difficult to persuade the court to grant permission in many cases, since most decisions made without a hearing would be likely to involve an exercise of discretion, which would be inherently difficult to challenge on appeal.”

Dyson LJ added:

“33. CPR 23.8(c) on its face appears to cover any situation where, regardless of what one or more of the parties may say, the court does not consider that a hearing would be appropriate. In other words, this gives the court the jurisdiction to dispose of any application without a hearing. 34. Why should CPR 23.8(b) and (c) not be construed in this way? A possible concern is that, if CPR 23.8 is so construed, there is no express provision in the rules or the practice direction to prevent an unsuccessful applicant from asking the court to reconsider the order it made on paper, rather than appeal. In our view, there is nothing objectionable in giving any party affected by an order made without a hearing the right to apply to have it set aside, varied or stayed, whether the applicant requested a hearing in the first place or not. This accords with standard practice referred to at para 24 above and reflects the fact that efficient and proportionate case management often requires that orders be made on paper, but recognizes that a party may be able to put his case more persuasively at a hearing. We can find nothing in this practice which casts doubt on what we consider to be the natural construction of CPR 23.8.”

[22]At paragraph 37, the court underlined the right of a party to apply to set aside or vary an order under r 3.3(5) where an order has been made without a hearing under r 23.8(c). It is good practice for the application to be made at a hearing. At paragraph 38, the court stated:

“On receipt of a without notice application with a request for the matter to be disposed of on paper, the court should consider whether it is appropriate to dispose of the matter without a hearing. In our view, there is a danger in dealing with important applications on paper.”

[23]As Laws LJ stated in Sengupta v Holmes

[2002] EWCA Civ 1104

, at paragraph 38:

“the central place accorded to oral argument in our common law adversarial system. This I think is important because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the Judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it.”

Keene LJ stated, at paragraph 47:

“One important factor which exists both at a renewed application hearing [for permission to appeal in a case of judicial review] and at a substantive appeal hearing is the benefit enjoyed by the court of listening to oral argument. This is a fundamental part of our system of justice and it is a process which as a matter of common experience can be markedly more effective than written argument.”

[24]Part 23 makes general rules about applications for court orders. It covers a range of applications and Mr Westgate did not dispute that the application which led to the orders challenged in these cases was an application under Part 23. He submitted that the power of the court to deal with an application without a hearing, on the ground that the court did not consider that a hearing would be appropriate, cannot, in the face of r 54.18 include an application to decide finally a claim for judicial review. There is no suggestion in Part 23 that it is so comprehensive. An application for permission to apply for judicial review is mentioned in r 23.12, which deals with dismissal of totally without merit applications. The application for judicial review itself is not mentioned.

Conclusions

[25]The rules do not contemplate final orders on civil claims being made without the opportunity for an oral hearing. For example, even in small claims track claims, r 27.10 provides that the court may, if all parties agree, deal with the claim without a hearing (emphasis added).

[26]I agree with Mr Westgate that the court’s comprehensive and practical guidance in Collier on making orders of the court’s own initiative and without a hearing, and the relief available to parties, provides no support for a submission that a claim for judicial review may finally be determined without the applicant having an opportunity to make oral submissions. Not only are the powers of a court, as described, circumscribed but the value of an oral hearing is indicated. In my judgment, Collier proceeds on an assumption that nobody should be driven from the court by a final determination without an opportunity to put a case orally. Marcan and Raja proceeded on the same assumption.

[27]What might have appeared to be a time and cost saving exercise has in the event had the opposite effect. To obtain the oral hearing they sought before the Administrative Court, the appellants have had to come to this court where, following a grant of permission, such hearing would not be refused. Rightly, it has not been suggested that the oral hearing in this court has remedied the failure to allow one below.

[28]In my judgment, CPR 54.18 applies to the final decision on a claim for judicial review. The rule deals specifically and exclusively with claims for judicial review and covers the present situation. Where permission to apply has been granted, the claimant is entitled to a hearing.

[29]The effect of the rule is that, unless all parties agree that the claim for judicial review may be decided without a hearing, the entitlement exists. That accords with fundamental principle, which is not diluted by the rules. For this purpose, a decision that the claim for judicial review should not be decided on its merits, whether for lack of standing of the claimant, or other reason, is nevertheless a decision on the claim for judicial review within the meaning of r 54.18. The decision has the effect of finally determining the claim. I do not find that construction artificial.

Article 6

[30]At the hearing, neither counsel relied on the provisions of

article 6 of the European Convention on Human Rights

entitled “Right to a Fair Trial”. The potentially applicable part of article 6 is in the opening words:

“In the determination of his civil rights and obligations, . . . everyone is entitled to a fair and public hearing . . .”

Mr Westgate stated in terms that it was not necessary to rely on article 6 and the present case turns on the scope of the CPR, particularly r 54.18. Miss Anderson relied on her construction of r 54.18 and the power of the court to act of its own initiative without an oral hearing conferred by r 23.8.

[31]I gave the opportunity for post-hearing written submissions, concerned that, on a point as fundamental as the right to an oral hearing before a claim for judicial review is determined, domestic jurisdiction should not be out of tune with Strasbourg jurisprudence. Written submissions have been supplied, Miss Anderson submitting that article 6 does not apply to the proceedings in question, that the Strasbourg jurisprudence does permit exceptions to the right to be heard and that the application of article 6 should not be held to go beyond that required by the ECtHR.

[32]Conscious as I am of the position of the parties, and the absence of oral submissions on the point, I propose to deal with these helpful submissions briefly. It appears to me that article 6 does cover the present proceedings which are in a court of law and not an administrative body. On the conclusion I have reached on the effect of the rules, the appellants do not need to rely on article 6. None of the ECtHR decisions cited, or the domestic decisions in an article 6 context, cast doubt on the approach to the construction of the rules I have adopted. Indeed, the authorities on the Rules, and the relevant Rules themselves, appear to acknowledge and reflect, as one would expect, the existence of the article 6 duty.

[33]The authorities do not cast doubt on the appropriateness of a requirement for an oral hearing in present circumstances. They far from demonstrate an intention to relax the requirement for an oral hearing before a claim in the Administrative Court is finally determined.

Result

[34]For those reasons, I would allow this appeal. The appellants must have an opportunity to address the Administrative Court orally before their application for judicial review is finally decided. Submissions in writing are invited as to whether further orders are appropriate, and if so in what form.

[35]I agree with Lord Justice Pill that the appeal should be allowed. He has set out all the necessary factual material so I can go straight to the point.

[36]In general, cases which are or have become academic as between the parties should not be brought or continued, so as to take up the resources of the court or the parties or of those providing funding for the litigation: see Lord Slynn quoted by Pill LJ at paragraph 5 above. That principle is subject to exceptions, most often to be found nowadays in the realm of public law. The case of Kiana is itself an exception. For the same reasons as in the present cases, after the issue of the proceedings it ceased to matter as between the parties whether the claimant in that case was entitled to the relief sought. However, the point would arise in other cases and in many of them the same situation might well be repeated. It was therefore appropriate for Kiana to be decided on its merits by the Administrative Court, despite having ceased to matter as between the actual parties. That case is now due for hearing in the Court of Appeal in April 2011.

[37]The present cases are examples of the same situation, in relation to the same point, though of course on different facts. As soon as proceedings were issued Judge Langan Q.C. made interim orders under which the Claimants obtained for the time being the benefits to which they claimed to be entitled, pending the hearing. Langstaff J granted leave to apply for judicial review. The grant of indefinite leave to remain to each Claimant after that gave each Claimant an indisputable entitlement to benefits for the future, so the proceedings are no longer needed for the sake of the Claimants.

[38]The Secretary of State then issued an application notice under Part 23, as described by Pill LJ at paragraph 12 above. The application should not have included a request for the setting aside of the grant of leave to apply for judicial review. In other respects the content of the application notice was appropriate.

[39]For the Secretary of State Miss Anderson submitted that it was open to the court to deal with this application notice without a hearing under CPR Part 23.8(c), which Pill LJ has set out at paragraph 17 above. At first sight it seemed to me that there was some force in this argument. However, if the order sought would fall within the scope of rule 54.18, set out at paragraph 13 above, there would be a conflict between the two rules.

[40]I agree with Pill LJ that rule 23.8(c) must yield to rule 54.18 so as not to allow an order to be made which amounts to deciding an application for judicial review without a hearing, unless the parties agree to that manner of proceeding. I also agree with him that an order dismissing the claim on the basis that it has become academic must be regarded as an order by which the claim for judicial review is decided, and therefore it is within rule 54.18. Miss Anderson submitted that a court which made such an order, without considering the merits of the judicial review application, would not be deciding the judicial review claim, but would rather be deciding not to decide the claim. Like my Lord, I cannot accept that distinction. I would hold that an order by which a judicial review application is dismissed on the basis that it is academic and that there is no sufficient reason for it to continue to a decision on the merits is an order deciding the judicial review claim.

[41]For my part I would not place any reliance on the terms of rule 23.12, which is concerned with circumstances in which an application may be dismissed as being totally without merit, and in which the court is to consider whether to make a civil restraint order against the applicant. In its nature that can hardly apply to an application for judicial review, which will have got over the hurdle of the requirement of leave to apply (or of a decision in favour of a rolled up hearing), and is therefore to be taken to have arguable substance.

[42]If it were thought desirable that the Administrative Court should be able to deal with an issue of this kind on written submissions without a hearing, then a specific rule would be needed qualifying rule 54.18. As the rules stand, it cannot be done without agreement from the parties. I agree with what Pill LJ has said on this subject at paragraphs 27 to 29 above.

[43]I would not base my decision on article 6, despite the point having been raised and the interesting submissions that we have had from each side since the hearing. If article 6 applies, the position under which rule 54.18 does require a hearing, absent agreement to the contrary, clearly satisfies the requirements of the article. I do not wish to embark on a consideration of whether the article does apply. My decision is based on the proposition that, within its scope, rule 54.18 overrides rule 23.8(c).

[44]Judge Langan was right to make the order he did, which Pill LJ describes at paragraph 7 above. It was not open to him to alter Keith J’s order at that stage. It may well have been open to Keith J to make the order he did on 22 April (see paragraph 5 above), since he did not thereby finally determine how the matter should proceed to a decision, and the parties might (sensibly) have agreed to a determination without a hearing. It seems to me that, in substance, the order that should be set aside is the decision by Judge Behrens to proceed to decide the substantive issue, i.e. whether the case should proceed despite being academic, without a hearing: see the first sentence of his order set out at paragraph 9 above.

[45]What should happen next in this case is another question, on which I would invite submissions. The appeal in Kiana is due to be heard soon in this court. If the point of keeping these proceedings alive is to ensure that the court hearing the appeal in Kiana is aware of the variety of fact situations that may arise, it could be sufficient for an agreed memorandum of the facts of the present cases to be prepared and put before the court at that hearing. It does not seem practicable for the present cases to be brought before the court at that hearing in any more substantive way, nor is it obvious that this would be necessary or desirable as a use of the time of the court or the resources of the parties to these proceedings and their funders.

[46]I have had the advantage of reading in draft the judgments of Pill and Lloyd L.JJ. I agree with the conclusions of both that the appeals should be allowed, although there is to my mind a question as to which order below ought to be set aside. Pill LJ has explained that the only appeals before the court are those against Keith J’s order of 22 April 2010 and His Honour Judge Langan QC’s order of 24 May 2010. For the reasons Lloyd LJ has given, with which I agree, I doubt whether there is any sound basis for an appeal against Keith J’s order which was no more than one directing representations as to whether the judicial review applications should be disposed of or proceed to a full hearing and did not itself amount to an order that they should be disposed of without a hearing. As for Judge Langan’s order, that was in my judgment correct since he had no jurisdiction to set aside Keith J’s order. I agree with Lloyd LJ that the substantive issue upon which we heard argument in fact turns upon the correctness of His Honour Judge Behrens’s decision of 11 June 2010 by which he refused the application for an oral hearing and dismissed the judicial review claims. The application for permission to appeal that decision presently stands adjourned. I consider that the appropriate course would be for us to give permission to appeal against Judge Behrens’s order refusing an oral hearing and to allow the appeal against that order.

[47]Turning to the substantive issue, it depends upon the correct interpretation of CPR Part 54.18. That rule appears to me to make clear that a judicial review claim must be disposed of at an oral hearing unless the parties agree otherwise, which in the present case they did not. Miss Anderson’s response to that is that the true sense of the rule is that it is only directed at the disposition of a judicial review claim at a full merits hearing and does not prevent the court from disposing of such a claim without a hearing in circumstances in which it is satisfied that the claim no longer needs to be decided on its merits at all. Her submission was that, in such circumstances, the court can properly dispose of a judicial review claim without a hearing by exercising its power under Part 23.8(c).

[48]The difficulty I have with that is that I can see no warrant for interpreting Part 54.18 in such a narrow way. Its language does not expressly draw the distinction that Miss Anderson makes and I regard its more natural meaning as simply intended to refer to the procedure (whether with or without a hearing) by which the court may finally dispose of a judicial review claim. That, I consider, embraces not just the disposal of the claim following a decision on its merits, but any final determination of the claim in whatever circumstances it might come to be made. The effect of the rule is that all such determinations must be at a hearing unless the parties agree otherwise. It follows that, if there is such agreement, there is no need to have recourse to the Part 23.8(c) power; and if there is not, there is no scope for its invocation as an alternative procedure for the disposal of a judicial review claim, since an exercise of that power in such circumstances would conflict with the different requirement of Part 54.18 to which it must yield.

[49]That, in my view, is all there is to this appeal. I regard it as unnecessary to consider the impact of Article 6. The appellants are able to make good their case without needing to rely upon it.