AC-2024-LON-001145 - [2025] EWHC 2075 (Admin)

The contention that the Administrative Court listing procedures thwarted an otherwise meritorious claim for judicial review loses force in the absence of any evidence to suggest that the appellants’ solicitors asked the court to expedite the claim. The appellants knew on 20 July 2023 that the MPTS would resume proceedings on 30 October 2023. They could at the time of lodging the judicial review claim form – or at any time thereafter – have applied for urgent consideration of the claim on the grounds that there were proceedings pending in the MPTS. I regard the complaint about Administrative Court delay as legally irrelevant to the question whether the principles of res judicata apply and (in the alternative) as carrying little weight in answering the question whether the wider interests of justice require me to depart from enforcing those principles.

As Mr Dunlop emphasised, the Deputy Judge considered the merits of the grounds for judicial review and rejected them as unarguable. There is force in Mr Dunlop’s submission that it is an abuse of process to seek to resurrect in this appeal those matters found unarguable in judicial review proceedings. Irrespective of the law at the time of Momin Ali, the developments highlighted in Tomlinson suggest that there may no longer be any principled reason for treating an earlier judicial review claim as incapable of generating an issue estoppel. The same may be said about the application of Henderson v Henderson: it is difficult to see why parties to judicial review proceedings should be immune from findings of abuse of process if the same arguments are made again in later proceedings.

However, I did not hear full argument on the effect of Tomlinson and was not asked by either party for an adjournment or further time in order to address it fully. Nor did I hear full argument on whether the exercise of a statutory appeal right from a regulatory tribunal (as in the present case) should be curtailed by principles of res judicata or abuse of process because an appellant has in the past extricated himself or herself from judicial review proceedings at the permission stage. I am reluctant to reach firm conclusions on a matter of law that has not been fully argued. I decline, therefore, to make a determination in relation to res judicata. It follows that I must consider Grounds 1-5 substantively.

Against that background, I turn to consider Grounds 1-5 on their merits.