R (on the application of PG) v (1) LONDON BOROUGH OF EALING (2) THE EALING HOSPITAL MANAGERS (3) JONATHAN SCOTT [2002] EWHC 250 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 250 (Admin)Case No Case No: CO/1640/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
R (on the application of PG)Claimant(1) LONDON BOROUGH OF EALING (2) THE EALING HOSPITAL MANAGERS (3) JONATHAN SCOTTDefendants
Before
Mr Justice MunbyThe Claimant appeared in personMr Hilton Harrop-Griffiths (instructed by Legal and Democratic Services, LB of Ealing) for the First DefendantThe Second and Third Defendants did not appear and were not representedDate 28 February 2002
[1]Mr Justice Munby: These are judicial review proceedings in which the claimant challenges the legality of her detention under section 3 of the Mental Health Act 1983. She was detained – she has since been discharged – by the second defendants under the care of her responsible medical officer, the third defendant, pursuant to an application made on 1 February 2001 by a social worker employed by the first defendant. The essential dispute, at least as between the claimant and the first defendant, is whether the claimant’s nearest relative, her mother, did or did not object to the first defendant’s application for the claimant’s detention. That turns on what, as I understand it, are hotly disputed issues of fact.[2]At an oral hearing on 27 July 2001, which had previously been directed by Turner J, Scott Baker J gave the claimant permission to apply for judicial review as against the first defendant. The application for permission as against the other defendants stands adjourned.[3]Scott Baker J on 27 July 2001, and subsequently Keith J on 16 and 29 November 2001, gave directions for the substantive hearing of the claim against the first defendant. Included amongst the directions were directions for certain witnesses to attend for cross-examination.[4]The substantive hearing was listed before me on 11 February 2002. The claimant appeared in person assisted by a McKenzie friend. The first defendant was represented by Mr Harrop-Griffiths. In the event the hearing had to be adjourned for reasons which have nothing to do with the one issue with which this judgment is concerned. Those reasons are set out in the extempore judgment I gave on 11 February 2002.[5]Very properly and very helpfully, if I may say so, Mr Harrop-Griffiths raised as a matter of law the question of whether this court, following the comparatively recent supercession of RSC Order 53 by CPR Part 54, still retains the power to receive oral evidence and order the cross-examination of witnesses on their witness statements and affidavits. That is obviously a very significant question of some general importance. It is a question which it is important that I answer, not least because it has recently been highlighted by Mr Martin Smith in what is, if I may be permitted the observation, an important and helpful article, ‘Cross-Examination in Judicial Review under the CPR’ , in [2001] JR 138.[6]There is no doubt that in the period immediately prior to the introduction of CPR Part 54 – and, indeed, long before that – the Administrative Court and its predecessors had power to receive oral evidence and direct cross-examination. Mr Harrop-Griffiths has referred me to a number of cases which trace the practice prior to the rule changes in 1977: R v Kent JJ ex p Smith [1928] WN 137, R v Stokesley, Yorkshire, JJ ex p Bartram [1956] 1 WLR 254, George v Secretary of State for the Environment (1979) 77 LGR 689. The position thereafter was stated authoritatively by Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 at p 282G:
“whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires.”
[7]In his article Mr Smith helpfully lists, by way of example, a number of more recent judicial review cases in which cross-examination was ordered. In this connection Mr Harrop-Griffiths also referred me to the observations of Laws J (as he then was) in R v The Arts Council of England ex p Women’s Playhouse Trust (1997) July 29 (unreported).[8]As Mr Harrop-Griffiths pointed out, the relevant provision was to be found in RSC Order 53 rule 8(1). This recognised that in judicial review proceedings the court could make an order under RSC Order 38 rule 2(3). That rule was in the following terms:
“In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.”
[9]The modern equivalent of RSC Order 38 rule 2(3) is CPR 8.6 which is in the following terms:
“(1) No written evidence may be relied on at the hearing of the claim unless – (a) it has been served in accordance with rule 8.5; or (b) the court gives permission. (2) The court may require or permit a party to give oral evidence at the hearing. (3) The court may give directions requiring the attendance for cross-examination of a witness who has given written evidence.”
[10]CPR 54.1(2)(e) and 54.2 apply CPR Part 8 to claims for judicial review. The problem arises because of CPR 54.16. This is in the following terms:
“(1) Rule 8.6 does not apply. (2) No written evidence may be relied on unless – (a) it has been served in accordance with any – (i) rule under this Part; or (ii) direction of the court; or (b) the court gives permission.”
[11]Two things will be noticed about CPR 54. In the first place CPR 54.16(2) corresponds to CPR 8.6(1). Secondly, CPR 54 itself contains no provisions corresponding to CPR 8.6(2) and (3). The consequence is that there appears to be no provision authorising cross-examination in judicial review cases.[12]The learned editors of the Autumn 2001 White Book make this comment about CPR 54.16 in para 54.16.2:
“It is unclear whether this rule was intended to restrict the availability of cross-examination. It seems likely that the courts will regard themselves as able to order cross-examination in the exercise of their inherent jurisdiction in any event although there will be few judicial review cases where cross-examination will be appropriate.”
[13]Mr Smith in his article goes even further. He asserts (see p 140, para [9]) that “this power has been denied to the court in Part 54 cases”.[14]I am not aware of any conscious decision having been taken by anybody to deprive the Administrative Court of a power which it has had for so long and which, as Lord Diplock, like others before him, recognised, may require on occasions to be exercised if justice is to be done. I find it almost inconceivable that the decision can in truth have been deliberate. The simple fact is that there will be some cases – no doubt not very many – where justice simply cannot be done unless there is cross-examination.[15]In this connection it is important to bear in mind recent developments in the nature of judicial review. In particular, the court is no longer bound in all cases by the ‘ Wednesbury ’ straightjacket. Already before the coming into force of the Human Rights Act 1998 the court had begun in some contexts to apply the heightened scrutiny test which has come to be called the ‘super- Wednesbury ’ test: see R v Ministry of Defence ex p Smith [1996] QB 517 . More recently it has come to be realised that in some contexts even that will not suffice: see R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 , [2001] 2 AC 532 per Lord Steyn at p 547F (para [27]). Even more recently it has been acknowledged that in some contexts nothing short of a full merits review will suffice even in a judicial review case: R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545 , [2002] 1 WLR 419 at pp 435E, 447E (paras [36], [83]).[16]As Lord Steyn said in Daly at p 548C (para [28]), citing Laws LJ in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at p 847H (para [18]):
““the intensity of review in a public law case will depend on the subject matter in hand”
. That is so even in cases involving Convention rights. In law context is everything.”[17]Now, as the Court of Appeal recognised in Wilkinson , what they referred to as a “full merits review” requires cross-examination. Indeed that was the very point in the case, for in Wilkinson the Court of Appeal reversed the decision of Jowitt J who had refused to order cross-examination in judicial review proceedings in which a detained patient was challenging the legality of his compulsory treatment under sections 58 and 63 of the Mental Health Act 1983.[18]The present question seems not to have been canvassed in Wilkinson , perhaps because, as Mr Harrop-Griffiths pointed out, the judicial review proceedings in that case were commenced before CPR 54 came into force. Be that as it may, Wilkinson , as it seems to me, stands as a plain indication(a) that there will be judicial review cases in which cross-examination is appropriate, indeed essential, and(b) that there will be cases in which, such is the intensity of the review demanded by some challenge based on alleged breach of Convention rights, that compliance by the court itself with the Convention will demand that there be cross-examination.[19]I suspect that in fact the apparent change in the rules is due to nothing more than a mistake on the part of the draftsman, who in CPR 54.16(1) referred to CPR 8.6 when the reference ought to have been to CPR 8.6(1). This view is, perhaps, supported by what I have said in paragraph [11] above about the structure of CPR 54.16 as compared to CPR 8.6.[20]Be that as it may I have not the slightest doubt that the court has the power, in an appropriate case, to direct oral evidence and cross-examination in judicial review proceedings. Indeed I would go further. There will be judicial review cases – probably very few, but that is another matter – in which the court will simply not be able to meet its obligations under Article 6 of the Convention unless it is able to order cross-examination.[21]In my judgment, and notwithstanding CPR 54.16(1), the Administrative Court has, as it and its predecessors always have had, power to direct oral evidence and cross-examination.[22]That power can I think be found in a number of different places.[23]In the first place there is CPR 32.1, headed “Power of court to control evidence”, which is in the following terms:
“(1) The court may control the evidence by giving directions as to – (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court. (2) The court may use its power under this rule to exclude evidence that would otherwise be admissible. (3) The court may limit cross-examination.”
[24]I see nothing in CPR 54 which excludes recourse to the exercise of these entirely general and unfettered powers. Indeed their use in an appropriate case seems to me to be mandated by the obligation of the court under CPR 1.2 and CPR 1.4 to further the overriding objective.[25]Next there is CPR 3.1(2)(m) which provides that “Except where these Rules provide otherwise, the court may … take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”[26]In my judgment CPR 54.16(1) does not “provide otherwise”.[27]Moreover, and quite apart from the provisions of the CPR the Administrative Court, which is after all part of the Supreme Court of Judicature and thus a superior court of record, must, as it seems to me, have an inherent power to direct oral evidence and cross-examination as part of its inherent jurisdiction to regulate its own procedure so far as that is not inconsistent with rules of court or other statutory provisions: see Abse v Smith [1986] QB 536 at p 555B, Langley v North West Water Authority [1991] 1 WLR 697 at p 709D. I can detect no such inconsistency with the CPR.[28]Finally, and if it was necessary to go this far I would hold that CPR 54.16(1) should be construed as if the reference to CPR 8.6 were a reference to CPR 8.6(1).[29]There is accordingly, in my judgment, no need to resort to the ingenious device suggested by Mr Smith at p 141 (para [15]) of his article.[30]I must emphasise that in this judgment I have been concerned only to consider whether the Administrative Court has power to direct oral evidence and cross-examination in judicial review proceedings. I have not had to consider the circumstances in which that power should be exercised. Notwithstanding Wilkinson I would expect recourse to such powers to be very much the exception. The vast, indeed overwhelming, bulk of judicial review cases will continue, as hitherto, to be determined without oral evidence.[31]Despite Mr Harrop-Griffiths’s arguments I am quite satisfied that Scott Baker J and Keith J had power to direct cross-examination in this case. Moreover, although the case is not on all fours with Wilkinson it seems to me, as it obviously did to both Scott Baker J and Keith J, that the present case is one in which that power should be exercised. Accordingly I decline to set aside the existing orders for cross-examination.

Cited in 6 later judgments