AC-2025-BHM-000177 - [2025] EWHC 2551 (Admin)

Fecha: 05-Sep-2025

Common Law ‘Pointlessness’ and ss.31 (2A)-(3F) Senior Courts Act 1981

Common Law ‘Pointlessness’ and ss.31(2A)-(3F) Senior Courts Act 1981

41.

The last wider issue is the role and relationship of Common Law ‘Pointlessness’ (as I shall call it) and s.31(2A)-(3F) Senior Courts Act 1981 (‘SCA’) in the context of Parole Board decisions whether to have an oral hearing. As I shall explain, these are two overlapping but analytically different concepts. But s.31(2A) is a statutory form of an instance of Common Law discretion.

42.

‘Pointlessness’ does not relate to the Common Law discretion to refuse relief, but is rather part of the principles of procedural fairness themselves, described in cases like Doody and Osborn. ‘Pointlessness’ was not considered in those cases but was discussed in detail by the Supreme Court in Pathan. The detailed facts are important to the principle. Mr Pathan was a blameless migrant skilled worker, dependant on his ‘sponsorship’ by his British employer for his leave to remain, who made an application to renew it in good time before it expired. However, he was not told either by the Home Office or his employer that the former had revoked the latter’s sponsorship licence, so Mr Pathan’s application to extend his leave based on that sponsorship was bound to fail, but it did not prevent him ‘switching’ to another sponsor. His application was inevitably refused and he sought judicial review on the basis of procedural unfairness by the Home Office (i) by failing to notify him of the cancellation so he could ‘switch’ sponsors; and/or (ii) failing to extend his leave to enable him to do so. The Supreme Court split two ways on issues (i) and (ii), with a majority of four Justices holding (i) was procedurally unfair; but a (different) majority of three holding (ii) was not ‘procedural’ at all, but substantive so not unfair. The two Justices in the majority on both issues, Lord Kerr and Lady Black, on issue (i) rejected the Home Office’s argument that it would have been ‘pointless’ to notify promptly, referring to observations in Osborn at [68] that procedural fairness is not just about the result and pointing out prompt notification would have given Mr Pathan time to ‘switch sponsors’.

“119.
[T]he scope of inquiry into the duty to act fairly cannot be confined, in every instance, to circumstances in which the affected person aspires to change the decision-maker’s mind on the precise decision made. Where notice of the decision might prompt a change of direction which would achieve the aim of the person, albeit by a different route, there is an active inquiry to be had as to whether the duty is activated….
126 The…statements [in Osborn] do not, of course, relate directly to Mr Pathan’s case. But they serve as a useful reminder that utility is not the only yardstick by which to measure the duty to act fairly in communicating to an individual why (and more relevantly in this case when) a decision adverse to their interests has been or is to be taken.…
131…[T]he duty to give notice of a decision to someone who will be adversely affected by it cannot be defined solely by the consideration that it is pointless for that person to make representations with a view to reversing or avoiding the effect of the decision. The duty to give notice is an accepted element of the duty to act fairly. Three months elapsed between [the employers’] sponsor licence being revoked and the refusal of Mr Pathan’s application. It cannot be suggested that informing him promptly of the revocation of the licence when it had been cancelled would not have made a difference…” (given his ability to ‘switch’).

43.

There are three types of argument that a procedural step ‘would not make a difference’ in the Parole Board oral hearing context. Firstly, there is whether the Parole Board can decline a prisoner even an opportunity to make representations at all for an oral hearing as it would ‘not make a difference’ or be ‘pointless’ in the Pathan sense. The simple answer is no, since as I explained, Rules 19 and 20 provide a statutory mechanism for a provisional decision then opportunity to make representations. But ‘Pointlessness’ can only apply (albeit even then, rarely) to Common Law procedural fairness - it cannot exclude a prisoner’s statutory rights.

44.

Secondly, there is whether a Rule 19 or 20 decision can prospectively reject a request for an oral hearing as it would ‘not make a difference’ or be ‘pointless’ in the Pathan sense. For example, I asked Mr Ridding whether the Board could decline to decline an oral hearing on the basis it would make no difference or be ‘pointless’ in the Pathan sense, not simply to a prisoner’s prospects of release or transfer, but even to his future treatment in prison such as future treatment or work, as discussed by Lord Reed in Osborn at [84] quoted above. But as Mr Ridding said, in Pathan, Lord Kerr and Lady Black at [126] agreed with Lord Reed in Osborn that ‘utility’ is not the only yardstick’, e.g. fairness may require an oral hearing for ‘effective participation’ as I discussed and also given what Lord Reed said in Osborn at [88]:

“Whether a prisoner’s right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success and thus involves circular reasoning.”

45.

Thirdly, there is the related but analytically distinct issue from ‘Pointlessness’ of whether a procedural failing can be adjudged by the Court retrospectively to have ‘made no difference’: called ‘the ‘Simplex principle’ after Simplex v SSE (1988) 57 P&CR 306 (CA). The Court of Appeal in R(Goring DC) v South Oxfordshire DC [2018] 1 WLR 5161 summarised it at [53]:

“[A Court has] to consider whether there was any realistic possibility of the…decision being different but for the error of law: see Lord Carnwath’s judgment[s] in Walton v Scottish Ministers [2013] PTSR 51 [111]-[112]…R(Champion) v North Norfolk DC [2015] 1 WLR 3710 [54]-[66] and De Smith’s Judicial Review, 8th ed (2018), paras 18-047-050..”

46.

As also confirmed in R(Goring) at [53], the Simplex principle still exists, but from April 2015, it has been partly superceded by ss.31(2A)-(3F) SCA, which I set out effectively in full:

“31(2A) The High Court (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award [for damages] under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied….
(3C) When considering whether to grant leave to make an application for judicial review, the High Court— (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so.
(3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave..” [ss.31(3E)-(F) do for (3D) what ss.31(“B0-(2C) do for s.31(2A)].

47.

There is now a considerable body of guidance from the Court of Appeal on ss.31(2A)-(3F) in planning cases, though none from the prison context so far as I am aware. So, it is all the more important to note that guidance and how it may apply in the present context, which is so often characterised by ‘one-sided’ judicial review applications where the MoJ and Parole Board do not participate, especially given this ‘no substantial difference’ point can be raised of the Court’s own motion at permission with s.31(3C) as well as at substantive stage with s.31(2A):

In R(Plan B) v SoST [2020] PTSR 1446 the Court of Appeal held the Government’s failure to consider the Paris Agreement in approving Heathrow expansion (which was later reversed by the Supreme Court) was not saved by s.31(2A). It said at [272]–[273]:

“272.
The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather…of duty provided the statutory criteria are satisfied. This is subject to a discretion…nevertheless to grant a remedy on grounds of ‘exceptional public interest’. Secondly, the outcome does not inevitably have to be the same; it will suffice if it is merely ‘highly likely’. And thirdly, it does not have to be shown the outcome would have been exactly the same; it will suffice that it is highly likely the outcome would not have been ‘substantially different’ for the claimant.
273.
It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is ‘highly likely’ that the outcome would not have been ‘substantially different’ if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, ‘the threshold remains a high one’…”

ii.

In R(Goring), the Court of Appeal held s.31(2A) (and Simplex) applied to a planning authority’s failure to consider environment assessment and said at [47] and [55]:

“47.
In our view…the proposition the s.31(2A) duty applies only to ‘conduct’ of a merely ‘procedural’ or ‘technical’ kind, and not also to ‘conduct’ that goes to the substantive decision-making itself, is a surprising concept. The duty has regularly been applied to substantive decision-making across the whole spectrum of administrative action, including in the sphere of planning, both at first instance and in decisions of this court…‘[C]onduct’ in s.31(2A) is a broad one and apt to include both the making of substantive decisions and the procedural steps taken in the course of decision-making. It is not expressly limited to ‘procedural’ conduct. Nor, in our view, is such a qualification implied. But this, we must stress, is not a necessary conclusion for the purposes of our decision on the application to reopen.
55.
It is axiomatic that, when performing that duty, or, equally, when exercising its discretion as to relief, the court must not cast itself in the role of the planning decision-maker… If, however, the court is to consider whether a particular outcome was ‘highly likely’ not to have been substantially different if the conduct complained of had not occurred, it must necessarily undertake its own objective assessment of the decision-making process, and what its result would have been if the decision-maker had not erred in law.”

iii.

In Gathercole v Suffolk CC [2021] PTSR 359 (CA), another case where s.31(2A) rescued a technical deficiency in a planning decision, Coulson LJ said at [38]:

“It is important a court faced with an application for judicial review does not shirk the obligation imposed by s.31(2A). The provision is designed to ensure that, even if there has been some flaw in the decision-making process which might render the decision unlawful, where the other circumstances mean that quashing the decision would be a waste of time and public money (because, even when adjustment was made for the error, it is highly likely that the same decision would be reached), the decision must not be quashed and the application should instead be rejected. The provision is designed to ensure that the judicial review process remains flexible and realistic.”

iv.

In R(Bradbury) v Brecon Beacons Park [2025] 4 WLR 58 (CA) Lewis LJ held once again that s.31(2A) saved a technical failure in a planning decision which made no difference to the decision. He observed:

“70.
[s.31(2A)] provides a court must refuse to grant a remedy on a claim for judicial review if it appears to the court that (1) it is highly likely (2) that the outcome for the claimant would not be substantially different (3) if the conduct complained of had not occurred. The outcome for the claimant is, usually, the decision or other measure that the public authority has taken. The ‘conduct complained of’… is the legal error or flaw which would justify the grant of a remedy in judicial review (unless a remedy was refused by reason of s. 31(2A) or for some other discretionary reason).
71.
[With] s.31(2A) the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision the public body has reached and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of s.31(2A) are unlikely to be satisfied….
74 [s.31(2A)]emphatically does not require the court to embark on exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching s.31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks that the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process the decision-maker undertook, to ascertain whether it is highly likely that the decision the public body took would not have been substantially different if the error had not occurred.”

Finally, on the same day, in R(Greenfields) v IoW Council [2025] EWCA Civ 488, Singh LJ (sitting with Lewis LJ) held there was inadequate evidence in that case to enable s.31(2A) to save a failure in a planning decision. He said at [105]-[106]:

“105.
If [s.31(2A)] was to be made good it was incumbent upon the respondent to give a full and clear explanation of how certain figures were arrived at…
106.
The Court should…in a witness statement) be given a full, accurate and clear explanation of the decision-making process used by the public authority concerned and should not have to depend upon submissions…”

48.

The only case I am aware of about Parole Board oral hearings where s.31(2A) has been analysed in any detail is R(Stubbs), predating most of those cases. UTJ Murkus QC linked s.31(2A) back to a case on ‘the Simplex principle’ in R v Thames Valley Police, ex p Cotton [1990] IRLR 344 (CA):

“36….[A]s explained by Bingham LJ in [Cotton] at 352, courts should be reluctant to conclude that the same result would have occurred if a person had not been deprived of an adequate opportunity to put his case. The reasons…include that: (i) experience shows that which is confidently expected is by no means always that which happens; (ii) the court should avoid straying from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of reviewing the merits of a decision, (iii) this is a field in which appearances are generally thought to matter, and (iv) a right to be heard is not to be lightly denied.
37.
Applying the principles in Osborn and in the light of my reasoning above, it was unfair to refuse an oral hearing. [It] is of itself an important right, even if it could not change the outcome (see…paras.68 to 70 of Osborn) and so this is a materially different outcome for the Claimant. In any event, to the extent that it is relevant to consider what the outcome of the parole review would have been following an oral hearing, I cannot say that it is ‘highly likely’ that the ultimate outcome of the parole review would have been the same. Given the disputed facts, the range and complexity of the issues to be decided and the assessment to be made, it is impossible to predict.”

In my view, with one important caveat, the principles UTJ Markus QC in R(Stubbs) at [36] applied by analogy from Cotton are consistent with Court of Appeal authority on s.31(2A). As explained in R(Plan B), s.31(2A) is a modified form of the Simplex principle, so subject to those changes (e.g. duty not discretion, hence the point in R(Gathercole)), guidance on the Simplex principle can carry over into to s.31(2A). Indeed, the point Lord Bingham made in Cotton about the Court not straying into reviewing the merits was echoed for s.31(2A) in R(Plan B), R(Goring) and R(Bradbury). (This is why decision-maker evidence on s.31(2A) may be (but is not always) necessary as said in R(Greenfields)). Indeed, the other points made in Cotton also reflect basic principles of procedural fairness reflected in Pathan and Osborn.

49.

Indeed, in R(Stubbs) at [37], UTJ Markus QC touched on a key point on s.31(2A) and Osborn which is worth unpacking. If it was unfair on the criteria in Osborn at [2] (‘the Osborn criteria’) not to have an oral hearing, on those same Osborn criteria, the relevant ‘outcome’ under s.31(2A) is not release, but an oral hearingitself. But it is ‘binary’: there is either an oral hearing or not: there is no clear ‘not substantially different’ alternative to it, as there may be to many other public law decisions. So, applying Lewis LJ’s three-step analysis of s.31(2A) in R(Bradbury) at [70]: to refuse permission or relief under s.31(3D) or (2A), the Court would have to be satisfied: (1) it is highly likely; (2) the claimant would still not have had an oral hearing; (3) if the conduct complained of (i.e. the unfairness) had not occurred. But (3) creates a problem if it is objectively unfair not to have an oral hearing on the Osborn factors, of the kind discussed in R(Plan B) at [273]. How can a Court be satisfied both that it was objectively unfair to refuse an oral hearing and at the same time that it is highly likely that an oral hearing would still have been refused in the absence of unfairness ? But the caveat is this logical problem with s.31(2A)-(3F) SCA only applies if the Court finds it was objectively unfair on the Osborn criteria to refuse an oral hearing itself. If there is some lesser ‘technical’ procedural unfairness, or fair but irrational decision-making (on the Wednesbury test, albeit with ‘anxious scrutiny’ R(Brown) v Parole Board [2018] EWCA Civ 2024 at [54]), there is logical room for s.31(2A) to apply. After all, ‘conduct’ (the legal error: R(Bradbury) at [70]) can include either the substantive decision or procedural steps up to it: R(Goring) at [47].

50.

For example, as I explained earlier, if a Rule 20 decision-maker unfairly fails to exercise their own judgment on whether fairness requires an oral hearing, that does not itself mean that objectively fairness requires an oral hearing under the Osborn criteria. So, if the Court concludes that refusal of an oral hearing was not objectively unfair, then logically, it may well be satisfied that it is ‘highly likely’ that an oral hearing would still have been refused without the more ‘technical’ unfairness – i.e. if the Rule 20 decision-maker had exercised their own judgment. Just because ‘conduct’ in s.31(2A) need not only be ‘technical’ (R(Goring) at [47]), if it is only ‘technical’ in a loose sense (it is not an analytic category or term of art), that is a paradigm case for s.31(2A) to apply (R(Gathercole) at [38]-[39]. However, of course, not all failures to exercise their own judgment by Rule 20 decision-makers will be ‘technical’ in that loose sense. As Lord Reed explained in Osborn at [95], if they treated the Rule 19 decision as ‘presumptively correct’ or failed to engage with representations properly, it may well not be possible to conclude it is highly likely they would have refused an oral hearing had they exercised their own judgment, because as Lewis LJ said in R(Bradbury) at [74], the Court cannot speculate about what decision the decision-maker might have made if they had not made an error, but rather whether it can be satisfied that it is highly likely that if the actual legal error had not occurred, the actual decision would not have been substantially different, which is a rather narrower and more focussed exercise. However, for example, the Rule 19 decision-maker may have fairly refused an oral hearing and the only error by the Rule 20 decision-maker may have been to say the Rule 19 decision was not wrong about an oral hearing, rather than reach an independent judgment about it. In that case, even without the sort of witness statement discussed in R(Greenfields) (which is very unlikely when the Parole Board does not actively defend Judicial Review claims), it may well be legitimate for the Court to infer that it is highly likely if the Rule 20 decision-maker had exercised their own judgment, they would still have come to the same (fair) conclusion as the Rule 19 decision did. As I shall explain, this distinction is a live issue in the present case, to which I will now turn.