AC-2024-BHM-000217 - [2025] EWHC 2510 (Admin)

Judicial review is neither designed for nor well suited to the resolution of factual issues:

The alternative route to the High Court is to apply to the Magistrates’ Court to state a case under s111 Magistrates’ Courts Act 1980. As summarised by Andrews J in Nicolson at [18], the justices are entitled to refuse to state a case if the application is “frivolous” (in the sense of raising questions that are futile, misconceived, hopeless or academic), or inappropriate, or if it raises issues which are irrelevant to the court’s decision. A refusal is susceptible to judicial review. Four points occur.

First, there is, therefore, a connection between the primary means of challenge on a point of law under s111 of the 1980 Act, and judicial review: case stated first, with judicial review to follow if needed. There is no procedural bar to judicial review instead of an application to state a case, but to do so risks problems in the litigation and for the court which are avoidable.

Second, the time limit for an application under s111 is 21 days: see s111(2). This is a notably shorter period than the three-month time limit for judicial review. This claim was filed just before time expired. Given that the Magistrates’ Court is not a court of record and so has neither a recording, a transcript nor obligation to keep a note, it is likely that the best evidence can be secured shortly after the decision which is said to be in error, rather than leaving a longer gap.

Where a Claimant does not make an application to state a case and does apply directly for judicial review, it may be instructive to consider whether the application has been made promptly having some regard to the time limit for the primary route of appeal under s111, namely 21 days. This was the principle used in the Administrative Court in planning cases before the present six-week limitation was introduced, i.e. the statutory time limit on challenges to a minister’s decision (six weeks) was used as proxy for what constituted a prompt application in a planning judicial review.

Thirdly, a further distinction is that a case stated is a document which is produced via an iterative process, and ultimately signed by the justices. The draft case stated is seen and commented upon by the court and the parties. It should therefore contain the relevant material in a single document and relevant exhibits to the case stated. It will have the advantage of the tribunal itself stating what happened. In this case, the acknowledgment of service came close to that but was four months after the decision and it was not the evidence of the tribunal which is evidence which would have assisted the court.

Fourthly, the case stated procedure removes the need for witness evidence with its associated costs and requirement for court resources. In turn, it removes the evidential problems which arise when a judicial review turns into a contested hearing on the facts, such as the evidential status of documents which have gone into an agreed hearing bundle, but which are not exhibited to a witness statement. A further example is the relative weight to give to evidence filed by the Defendant, who will almost never appear and be represented, in comparison to that evidence which is called by the active parties.

The helpful and pragmatic approach of counsel assisted in navigating these issues in this case. I am grateful to them all, whether advocate or witness.