| JUDICIAL REVIEW — Public authority — Legitimate expectation — Ex gratia scheme to compensate victims of miscarriages of justice — Withdrawal of scheme without consultation or prior notice — Statutory scheme continuing with reduced level of legal costs — Solicitors specialising in miscarriage of justice compensation cases and victims with claims not yet submitted seeking judicial review — Whether legitimate expectation of consultation prior to change of policy — Whether withdrawal of scheme and reduction in fees without notice unfair
R (Bhatt Murphy (a firm) and others) v Independent Assessor; R (Niazi and others) v Secretary of State for the Home Department [2008] EWCA Civ 755; [2008] WLR (D) 233
CA: Sir Anthony Clarke MR, Laws and Sedley LJJ: 9 July 2008
The mere existence of a discretionary scheme for compensation to the victims of miscarriages of justice did not create the conditions necessary to establish a legitimate expectation that the scheme would be continued, so that the Secretary of State was entitled to withdraw it without notice or consultation.
The Court of Appeal so held, dismissing two appeals against the dismissal by the Queen’s Bench Divisional Court on 26 June 2007 of claims for judicial review by : (1) Bhatt Murphy and five other firms of solicitors against the decision of the Independent Assessor to change the level of legal costs payable from 19 April 2006 under the discretionary and statutory compensation schemes for victims of miscarriages of justice; and (2) Noorrullah Niazi and two other claimants who had instructed solicitors to pursue claims under the discretionary scheme but had not made applications when the scheme was abolished by the Secretary of State for the Home Department on 19 April 2006.
LAWS LJ said that the power of public authorities to change policy was constrained by the legal duty to be fair (and other constraints which the law imposed). A change of policy which would otherwise be legally unexceptionable might be held unfair by reason of prior action, or inaction, by the authority. If it had distinctly promised to consult those affected or potentially affected, then ordinarily it had to consult, which was the paradigm case of procedural expectation. If it had distinctly promised to preserve existing policy for a specific person or group who would be substantially affected, then ordinarily it had to keep its promise, which was the paradigm case of substantive expectation. If, without any promise, it had established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it had to consult before effecting any change, which was the secondary case of procedural expectation. To do otherwise, in any of those instances, would be to act so unfairly as to perpetrate an abuse of power. The question on the appeal was whether any potentially enforceable legitimate expectation had arisen. Neither the Cabinet Code of Practice on Consultation nor the Home Office website committed the Home Office to a universal practice of consultation. A decision in a particular case whether to consult was a policy decision. On the basis that there was no promise to consult before the withdrawal of the ex gratia scheme, the secondary case of procedural expectation denoted an exceptional case, where the impact of the authority’s past conduct on potentially affected persons was pressing and focussed. There was nothing of the kind in this case. In relation to the solicitors’ claims for larger transitional provisions, they would have been entitled to terminate their retainers in the light of the costs changes announced on 19 April 2006. It was impossible to characterise the arrangements actually made as unfair, far less as an abuse of power. The reach of the policy change was wholly in the hands of the Secretary of State. Critically, there was no evidence on behalf of the solicitors or the claimants of any assurance, promise or practice that the policy would be set differently in any respect. Before 19 April 2006 there was nothing more than the scheme’s existence: at most a factual expectation that it would continue in effect until rational grounds for its cessation arose. Such an everyday state of affairs was categorically inadequate to generate a legitimate expectation which the courts would enforce.
SEDLEY LJ delivered a concurring judgment. SIR ANTHONY CLARKE MR agreed.
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