Court of Appeal emphasises the need for judicial comity between the three jurisdictions of the UK in public law cases

22/10/19

On 9 September 2019, Liberty issued a claim for judicial review against the Prime Minister seeking various forms of relief in relation to the European Union (Withdrawal) (No.2) Act 2019 (“the Act”). Following the issue of its claim, Liberty applied for a declaration that the Prime Minister could not take any step intended, anticipated or likely to result in the European Council declining or refusing to agree to a request for an extension required to be made by s.1 of the Act to the period under article 50(3) of the Treaty on the European Union. Liberty applied for a rolled-up hearing of its claim for that declaration in advance of the 19 October 2019 deadline for compliance with s.1(3)-(4) of the Act.

Liberty’s application for a rolled-up hearing was refused on the papers by Supperstone J on 11 October 2019. This was because materially similar proceedings had been heard at first instance and on appeal in the Outer and Inner Houses of the Court of Session in Scotland. On 9 October 2019, the Inner House, affirming the Lord Ordinary, refused all relief sought by the Scottish petitioners, but held over consideration of those proceedings until 21 October 2019, when the factual position would become clearer following the expiry of the 19 October 2019 deadline. Related proceedings in Northern Ireland were stayed by consent with liberty to apply following the Inner House’s ruling. Liberty applied directly for permission to appeal to the Court of Appeal against the Order of Supperstone J.

Following an oral hearing on 18 October 2019, the Court of Appeal (Lord Burnett of Maldon CJ, Sir Terence Etherton MR & Dame Victoria Sharp P) unanimously refused Liberty’s application for permission to appeal for reasons to follow. The Court of Appeal today gave its reasons for that decision and permission for those reasons to be cited in other cases. The Court explained that it had jurisdiction to entertain an appeal from a decision of a Judge of the Administrative Court made on the papers without the appellant first seeking an oral hearing in the Administrative Court, but emphasised that this was an exceptional course that could only be justified by extreme urgency.

The Court of Appeal held that in circumstances where arguments were proceeding in the courts of another part of the UK with power to issue the relief sought in Liberty’s claim, the Judge had not only been entitled but obliged to refuse an application for an urgent hearing. It was wrong in principle for litigants to press for determination of issues in a public law case where the same issues were being litigated elsewhere in the UK. If a litigant was concerned that an argument was not before the courts of the other jurisdiction, it should avail itself of the informal and formal means available to it to ensure that court was seised of the argument.

That conclusion was justified by both considerations of judicial time and resources and the risk of conflicting decisions between the courts of each part of the UK in the field of public law. It would be inconsistent with the principle of judicial comity for the English courts to review whether the decisions of the Scottish courts were correct. If it was suggested that those decisions were wrong, the remedy was for an application to be made for leave to appeal to the Supreme Court from the Scottish courts. Those courts were therefore the appropriate forum for the litigation of all matters which arose in Liberty’s claim and respect was to be paid to their decisions.

The judgment is here.