The Asbestos Victims Support Groups' Forum UK, R (On the Application Of) v The Lord Chancellor

This is the judgment of the court to which we have both contributed.

On 1 April 2013, the provisions of Part 2 of the Legal Aid, Sentencing and

The Claimant, also referred to as “the Forum”, is a charitable body whose objects are:

To preserve and protect the physical and mental health of sufferers of asbestos-related illness, through the provision of financial assistance, support, education and practical advice; and

To advance the education of the general public in all areas relating to asbestos-related illnesses including but not exclusively by providing information about the hazards of asbestos in the environment.

For the background to this legislation, we are indebted to William Davis J for his comprehensive recitation of the factual background set out in R (on the application of Tony Whitston) v Secretary of State for Justice [2014] EWHC 3044 (Admin) which was a successful challenge by Mr Whitston, then Chairman of the Forum, to the decision of the Lord Chancellor to bring into force sections 44 and 46 of LASPO in relation to mesothelioma claims.

The Legal Advice and Assistance Act 1949 introduced a system of legal aid provision in civil proceedings whereby any civil litigant had a means tested entitlement to legal aid, subject to the proposed claim having sufficient prospects of success.

In 1995, conditional fee agreements were permitted for the first time in relation to civil litigation in England and Wales. Until then, it was said that civil litigation was the domain of either the very rich, who could afford the legal fees, or the very poor, who qualified for legal aid, but was effectively closed to a large majority of the population falling between these extremes, for whom legal costs were ruinously prohibitive. Conditional fee agreements were intended to make it more practicable for those who did not qualify for legal aid to have access to legal assistance in bringing a civil claim. These “no win, no fee” agreements meant that the Claimant’s lawyers would not charge the litigant a fee unless the claim was successful but then, if successful, the lawyers could charge a “success fee” being a percentage surcharge on the base legal costs.

Of course, if the claim was unsuccessful, the Claimant would be liable to pay the costs of the successful defendant which were equally liable to be ruinously expensive. He would also be liable to pay his own disbursements, and in particular experts’ fees, which are not subject to the “no win, no fee” regime but are payable in any event. It therefore became a virtually necessary adjunct to CFA funded litigation that the claimant would take out a policy of insurance to cover the risk of paying not only the costs of the defendant if the claim was unsuccessful but also their own disbursements. This was known as After the Event (“ATE”) insurance. Between 1995 and 2000, the success fee charged and the ATE premium were in fact borne by the Claimant even if the proceedings were successful and those sums were deducted from the damages recovered.

The Access to Justice Act 1999 effectively removed legal aid provision in all civil claims, but particularly personal injury claims, and, in an attempt to balance this, changed the position in relation to success fees and ATE insurance. From 2000, when the Act came into force, success fees and the ATE premium became recoverable from the unsuccessful defendant. Thus, for example in a typical road traffic accident claim, the unsuccessful defendant’s insurer would have to pay not only the damages awarded to the claimant but also the recoverable costs, the success fee payable and the ATE insurance premium.

There appears to be no doubt that the effect of the Access to Justice Act 1999 was to improve exactly that implied by the title of the Act, namely access to justice. However, this was at the expense of a significant rise in the costs payable by defendants. Two aspects were perceived by some to be prime movers in the escalation of costs: first the success fee which was often set at the maximum of 100% and therefore caused the base costs to be doubled in many cases. Secondly, the ATE insurance premiums which, as cases got closer to trial, rose exponentially and could sometimes be measured not in tens of thousands of pounds but hundreds of thousands of pounds: see, for example, Percy v Anderson-Young [2017] EWHC 2712 (QB) where, in a pre-LASPO case, the ATE premium quoted was £319,315.07 up to 45 days before trial and £533,017.13 within 45 days of trial.

The consequence was that in November 2008 Sir Anthony Clarke MR appointed Lord Justice Jackson to conduct a review of the costs of civil litigation. Lord Justice Jackson’s final report was published in December 2009. In the explanatory foreword he said:

Lord Justice Jackson concluded that the recoverability of success fees and ATE insurance premiums had resulted in “unfortunate unintended consequences” and that this regime introduced by the Access to Justice Act 1999 had been one of the main

In November 2010, the Ministry of Justice issued a consultation paper entitled “Proposals for Reform of Civil Litigation Funding and Costs in England and Wales” which addressed the potential implementation of the Jackson recommendations and in particular the abolition of the recoverability of the success fees and ATE insurance premiums, along with certain associated reforms in relation to damages. The paper endorsed Sir Rupert Jackson’s belief that, if the recoverability of success fees and ATE insurance premiums was abolished, market forces would operate to bring both of those costs down because, as before 2000, they would be payable by claimants who would “shop around” for lower success fees and ATE insurance premiums. However, the consultation paper identified certain types of case where simple abolition might be problematic. One of those was claims for industrial disease including asbestosis. The paper put forward options to mitigate the impact of the abolition of the recoverability of success fees and ATE insurance premiums for such cases including the retention of some element of a recoverable success fee in certain categories of case.

The consultation period arising out of the Ministry of Justice’s proposals ran from November 2010 to February 2011. The Government decided to implement the Jackson reforms in what became LASPO. The Bill was introduced in the House of Commons in June 2011 and reached the House of Lords in November 2011. The pertinent clauses were those which subsequently became sections 44 and 46 of LASPO. These provided:

In the debates in the House of Lords, concerns were raised by, among others, Lord Alton of Liverpool as to the effect of the proposed reforms on access to justice in certain types of case, with the emphasis on claims for mesothelioma. Diffuse mesothelioma is a rare form of lung cancer, memorably described by Lord Phillips PSC as “a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres” (Sienkiewicz v Grief [2011] 2 AC 229). A feature of this disease is that it generally does not become apparent until many years after exposure to asbestos which, in the past, led to problems for those making a claim against, for example, former employers who were responsible for exposing the victims to asbestos. Thus the exposure may have been as long as 40 years previously and, over the intervening period, the victim may have had several employments in all of which there was exposure, or potential exposure, to asbestos. There were challenges in identifying the employers, identifying the periods of exposure to asbestos, identifying the breach of duty at the relevant time and, importantly, identifying an insurer liable to pay the damages and costs liability of an unsuccessful defendant. Mesothelioma claims are particularly tragic (because the victim usually has only a short time to live once symptoms manifest themselves) and are usually meritorious (the dangers of asbestos having been known and recognised for very many years but, in the case of too many employers, ignored with, for example, inadequate precautions such as personal protective equipment).

In the debates on the LASPO Bill in the House of Lords on 30 January 2012, Lord Alton sought to exclude the operation of what were to become sections 44 and 46 from cases of diffuse mesothelioma. At the conclusion of that debate, the proposed amendments were withdrawn on the basis that there would be further discussion between Lord Alton and the Ministry of Justice, but with the threat of the amendments being re-proposed in the event that discussions did not make satisfactory progress. This in fact eventuated and Lord Alton again proposed amendments at the report stage of the Bill in the House of Lords on 14 March 2012. The relevant amendments related to claims for respiratory disease generally, not just mesothelioma, although, again, the debate concentrated on the effect of what became sections 44 and 46 on claims for diffuse mesothelioma. At the conclusion of the debate the amendments, which were opposed by the Government, were carried.

When the Bill returned to the House of Commons Lord Alton’s amendments were overturned. They were reinstated when the Bill returned again to the House of Lords. Finally on 24 April 2012 the Bill returned to the House of Commons when the Parliamentary Under-Secretary of State for Justice, Mr Jonathan Djanogly MP, told the House that, having met with various interested parties (including Lord Alton) the Government had decided not to commence sections 44 and 46 in relation to mesothelioma claims. However, those sections were brought into full force in relation to all other claims including other claims arising out of exposure to asbestos, such as asbestosis and lung cancer other than mesothelioma resulting from exposure to asbestos, collectively referred to as Asbestos-Related Diseases (“ARDs”). So far as claims for diffuse mesothelioma are concerned, section 48 (1) of LASPO provides:

Finally, by way of background, it is relevant to mention that, on 27 March 2012, Lord Pannick QC tabled an amendment to LASPO whereby the Lord Chancellor would be given a discretion to respond to any problems seen to occur after enactment of LASPO, by excluding defined categories of case from the statutory provisions if he thought it appropriate to do so. In proposing the amendment Lord Pannick said:

The government opposed this amendment, Lord McNally stating:

The amendment was not withdrawn but put to the vote and defeated. Mr Robert Wright, a civil servant in the Ministry of Justice who has been involved with legal aid and litigation funding issues throughout the past decade, has made two witness statements on behalf of the Defendant in these proceedings. At paragraph 28 of his first statement he says:

LASPO came into effect on 1 April 2013 and, on 24 July 2013, the Government launched a consultation on the reform of mesothelioma claims. In March 2014 the Ministry of Justice published its response to the mesothelioma consultation and stated, at paragraph 85 as follows:

Thus, the Government reiterated what had been said during the passage of the LASPO Bill, namely that a PIR would be undertaken of the LASPO reforms, including Part 2.

On 17 January 2017 Sir Oliver Heald QC MP, then Minister of State for Justice, stated to the All-Party Parliamentary Group on Legal Aid Pro Bono and Public Legal

On 30 October 2017 David Lidington CBE MP, then Lord Chancellor, presented the PLM (Cm 9486) to the Justice Select Committee. This stated, at paragraph 7:

It may perhaps be noted that this was a statement of intention rather than a promise, although it has certainly been interpreted as a promise by the Claimant (see below).

On 28 June 2018, the Defendant published a policy paper entitled: “Post-

“Post-implementation reviews are policy led with analytical support. Data and research evidence will be used, so far as possible, to understand impacts of the reforms.

We do need to acknowledge the limitations of the hard data and what it can tell us.

The reforms are a delicate set of balances and counter-balances.

Our management information is comparatively blunt to measure the separate components in detail.

We need to avoid making spurious inferences about causality.

We will be using:

Courts’ data on claims volumes and processes.

Publish data on pre-court claims and settlements.

Professor Fenn’s assessment of litigation cost impacts.

Other published research data sources.

Expert opinion and responses to our request for evidence.”

The presentation highlighted that one key area where published data were lacking was:

The Claimant in these proceedings places particular reliance on the statements contained in the PLM and the PIR initial assessment. The PLM statement (see paragraph 16 above) is interpreted as a promise by the Defendant to undertake a “thorough and substantive analysis” of the effect of the LASPO reforms in the PIR.

On 3 July 2018, the Defendant issued a stakeholder alert encouraging stakeholders to complete an online survey to provide substantiated views and to supply further data and evidence which would help to indicate impacts of LASPO for the purposes of the final review. It was stated:

The MoJ received 155 non-duplicate responses in the consultation period including from the Bar Council (24 August 2018), the Association of Personal Injury Lawyers and the Law Society. They covered different categories of civil cases including personal injury, public liability, professional negligence, actions against the police, commercial/business disputes, insolvency, housing claims, human rights and claims for judicial review. Three of the responses primarily concerned asbestosis claims: those were from the Forum and from Leigh Day (including a personal response from Ms Harminder Bains which largely duplicated the response from the firm).

The response on behalf of the Forum was from its then chairman, Graham Dring. He indicated that the Forum sees approximately 350 newly diagnosed cases of asbestos related diseases each year of which, in 2017, 42% were mesothelioma cases, 33% were asbestosis, 17% were diffuse pleural thickening cases and 7% were asbestos related lung cancer cases. He pointed that out that diseases other than mesothelioma are divisible and a claimant will often have to sue multiple defendants in order to secure full compensation but it is often not possible to do this. Firms will have ceased trading in the intervening years and it may not be possible to trace insurance companies who provide appropriate cover with the result that these claimants only receive a proportion of the compensation they should be due. Payments received under the Pneumoconiosis (Workers’ Compensation Act) 1979 are deducted in full from any civil compensation awards, even where only partial compensation has been secured. He stated:

The response of Leigh Day to the consultation was substantive and covered many different aspects of the LASPO reforms including costs budgeting, fixed costs, allegations of fundamental dishonesty, international and group claims, consumer law and product safety. At paragraphs 11 and 12, the response concentrated on ARD claims, contrasted with mesothelioma claims. They stated:

A big difficulty is created by QOCS as the claimant can still be liable to pay the costs of the successful defendant.

Asbestosis, pleural thickening and lung cancer cases are all treated as divisible conditions. This means that frequently claimants have to bring proceedings against multiple employers. Often as a result of employers’ liability insurance not being in place, it is not possible to bring every possible tortfeasor into the proceedings.”

In his statement, Mr Burton referred to the experience of the effect of LASPO on personal injury claims generally rather than on asbestos victims in particular. He stated that the abolition of recoverability of success fees meant that the vast majority of barristers under CFA work on a nil success rate fee. Also, the effect of the change has been to create a much more cautious approach to litigation to the personal injury Bar so that marginal cases on liability are rarely accepted and difficult ones practically never. He stated:

Although a leading firm of solicitors in the field of asbestos-related claims, Leigh Day did not submit to the MoJ any statistical data on the effect of the LASPO reforms on asbestos victims in particular, as opposed to the effect on personal injury litigants generally. For example, there were no data submitted showing that asbestos victims’ access to justice had suffered disproportionately compared to other personal injury litigants because of the particular difficulties arising from the nature of asbestos related claims. This omission is referred to in the first witness statement of Mr Wright on behalf of the Defendant. Having quoted from the PIR initial assessment which stated:

In addition to receiving submissions in writing, the MoJ also held a series of meetings with stakeholders, including a meeting with representatives from the Claimant and Leigh Day on 28 November 2018. A note of that meeting records that Harminder Bains of Leigh Day stated:

The full PIR was published on 7 February 2019. The PIR identified the five objectives of the Part 2 LASPO reforms as being:

Reducing the costs of civil litigation

Rebalancing costs liabilities between claimants and defendants

Promoting access to justice at proportionate cost

Encouraging early settlement

Reducing unmeritorious claims

Within the PIR there are three references to asbestos related claims:

First, within the section which considers the non-recoverability of CFA success fees, it is stated at paragraph 76:

In the same section, at paragraph 81, the PIR stated:

In the section considering the non-recoverability of ATE insurance and the introduction of QOCS for personal injury cases, it was stated:

Although there was reference to at least some of the evidence submitted on behalf of asbestos victims by the Forum and Leigh Day, their concerns were merely noted but not specifically analysed nor dealt with substantially. The focus of the review was at a higher level, considering the impact of the LASPO reforms on cases across the broad spectrum of civil litigation, but looking at and considering the data where such data was available. The review contrasted the findings of Fenn and Rickman noting a 17%-22% reduction in damages in the two categories considered (clinical negligence claims up to £250,000 and personal injury claims above £25,000 in value) and compared that with the data from the claims portal covering a much higher volume of lower value claims which appear to show that damages had increased for most types of claim, a potential explanation being the 10% uplift in general damages together with increases recommended by the Judicial College guidelines on general damages for personal injury and extension of the claims portal to cover cases up to £25,000 in value which occurred in 2013. The review stated:

In a pre-action protocol letter of claim dated 5 April 2019, Leigh Day, on behalf of the Claimant, set out the Claimant’s position which has formed the basis of this claim for judicial review. Having referred to the PLM and the PIR initial assessment, they alleged that the Claimant had a legitimate expectation that the Defendant would

Assess the reforms from an analytical perspective in the manner of an impact assessment;

Examine whether there were unintended consequences from the

Undertake a more thorough and substantive analysis than was contained in the PLM.

In addition, it was alleged that the Defendant had failed conscientiously to take into account the review responses actually received. Leigh Day asserted that the Defendant had been told, through the review, that the LASPO reforms were working to the disadvantage of asbestos victims, had made things worse for many victims and there was no evidence that the LASPO reforms had resulted in wider choice or cheaper litigation for asbestos victims but there was a failure conscientiously to take these matters into account as the Defendant was obliged to do. The Defendant was required in the pre-action protocol letter to carry out an adequate consultation of the effect of the part 2 LASPO reforms on asbestos victims in a way that met the “Sedley requirements” as endorsed by the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947.

The pre-action protocol led to an exchange of correspondence with the Government Legal Department and further elaboration by Leigh Day of the Claimant’s complaints about the PIR. For example, in a further letter dated 16 May 2019, Leigh Day referred to the failure of the PIR to deal with evidence submitted by the Claimant and others about the unintended consequences of LASPO and in particular its effect on asbestos victims suffering serious and often terminal illnesses such as lung cancer. The letter stated:

In the claim form issued on 28 May 2019 the details of the decision to be judicially reviewed were given as:-

In the detailed Grounds of Claim which accompanied the claim form these two

the Defendant’s failure to discharge its obligation to carry out an adequate “review” of the impact of the LASPO Part 2 reforms under the title “the Post-Implementation Review of Part 2 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO); Civil Litigation Funding and Costs (February 2019 CP38); specifically in relation to the adverse impacts of the reforms on a specific but substantial cohort of the Claimants, viz. asbestosis disease sufferers (i.e. asbestos-related lung cancer, asbestosis and asbestos-related nonmalignant pleural thickening). Such cohort may amount, on the statistical evidence of the HSE (published October 2018) c. 3500 cases per year;

The Defendant’s decision following such review not to make any changes to the LASPO reforms and in particular not to extend the exclusion in Section 48 LASPO for diffuse mesothelioma proceedings to cases of the very similar (in terms of consequence) asbestos related lung cancer or pleural thickening and/or asbestosis having regard to the severe adverse impact of the LASPO Part 2 reforms on Claimants seeking to bring such claims leading to;

the denial of full compensation for such Claimants;

the denial of proper access to justice for such Claimants.”

In argument before us Mr Hyam QC and Mr Henderson confined their challenge to the allegation that the Lord Chancellor had failed to discharge his obligation to carry out an adequate review of the impact of LASPO Part 2. They did not seek judicial review of the Lord Chancellor’s decision not to make any changes to the LASPO reforms. Indeed, Mr Hyam accepted in the course of his submissions that if the review had properly engaged with the concerns raised by the Claimant and its solicitors Leigh Day and had explained why the Lord Chancellor had decided not to amend LASPO in the manner suggested, “we might not like the answers, but we could not complain.” This concession was in our view rightly made. The present case is not, and could not be, a rationality challenge. It is not the proper function of a court to say that it is unlawful for a minister not to introduce legislation to amend an existing primary statute.

No one could reasonably argue that ARD claims are “unmeritorious” in the sense of being spurious or unwarranted: indeed the skeleton argument on behalf of the Lord

Jeremy Hyam QC and Alasdair Henderson, on behalf of the Claimant, submitted that the Claimant had a legitimate expectation that the PIR would examine adequately the impact of the LASPO reforms on asbestos-related claims. They submitted that this expectation arose from a number of representations made by the Defendant and in particular: statements to the Justice Select Committee on 30 October 2017 that the

Mr Hyam submitted that these failures should be evaluated in light of several “elements of context”. First, the PIR analysis contained no relevant data about asbestos-related claims, even though these claims have been disproportionately affected by LASPO. In Mr Hyam’s submission, this precluded the Defendant from undertaking a proper impact assessment of the reforms in the manner in which the Defendant had promised. Secondly, there was significant concern during the passage of the LASPO Bill about the impact of the reforms on asbestos-related claims which, Mr Hyam submitted, further obliged the Defendant to carry out a thorough and substantive analysis of their effects. Thirdly, the obligation was heightened because much of that concern has continued after the implementation of the reforms.

Jonathan Auburn and Rupert Paines, on behalf of the Defendant, defended the legitimate expectation challenge on three bases. First, they submitted that the Defendant did not create the legitimate expectation identified by the Claimant. In R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, Laws LJ made clear that a legitimate expectation only arises if there is a “promise or practice” which amounts to a “specific undertaking, directed at a particular individual or group”. Mr Auburn relied on Re Finucane [2019] HRLR 7 for the proposition that when a public authority has made a clear and unambiguous undertaking, it will “not be allowed to depart from it unless it is shown that it is fair to do so” and, in determining the fairness of such a departure, a court should consider “whether the alteration in policy frustrates any reliance which the person or group has placed on it” (paragraph 62). Applying those propositions to the facts of this case, Mr Auburn submitted that no legitimate expectation arose from the Defendant’s representations because they were general in nature, not directed to the Claimant specifically and said nothing about asbestos-related claims in particular. He therefore characterised the Claimant’s case as an irrationality challenge in all but name.

Mr Auburn submitted secondly, and in any event, that the Defendant met the Claimant’s legitimate expectation, if such an expectation had in fact arisen. The Defendant promised to carry out an evidenced-based review of the LASPO reforms in a more thorough manner than he did in the Post-Legislative Memorandum. He fulfilled this promise through the PIR. The Defendant did not promise to take specific steps for any class of people, such as claimants suffering from ARDs, so was under no obligation to carry out the PIR in the manner in which the Claimant contends. Mr Auburn submitted thirdly that, in any event, it would not be conspicuously unfair for the Defendant to resile from any such promise, if such a promise had in fact been made.

On Ground 2 (failure to engage conscientiously with the issues raised in consultation)

A further concern on the part of the Forum arose from the decision of the Court of Appeal in Heneghan v. Manchester Dry Docks Limited [2016] EWCA Civ 86, a concern which was specifically raised with the MoJ by a representative from Leigh Day, Patrick Walsh, during the meeting on 28 November 2018. The background was that, in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 A.C. 32, the House of Lords, in a claim for mesothelioma, had extended the concept of “material contribution”. In general, in order for a Claimant to succeed, it is necessary for him to establish that, but for the breach of duty in question, he would not have sustained the injury complained of. However, special rules apply to cases where there is, or may be, more than one contributory cause of the Claimant's injury. In general, it will be sufficient for the Claimant to show that the wrongdoing in question made a material contribution to the injury. In Fairchild, the House of Lords stated that, where certain conditions are satisfied, then, as a matter of law, it will be taken that a Defendant who has materially increased the risk of damage occurring has materially contributed to such damage and causation will be proved. In Heneghan, the Court of Appeal extended the Fairchild exception, which previously applied only to mesothelioma claims, to an asbestos-related lung cancer claim on the ground that in a situation which was “truly analogous” the exception should be applied or the law in this area would be inconsistent and incoherent. Mr Hyam argued that this was powerful evidence that claims relating to other asbestos-related illnesses should be considered analogous to mesothelioma claims, which were exempted from the LASPO reforms by way of s.48 of LASPO. Indeed, the claim for exemption from LASPO for ARDs other than mesothelioma is arguably stronger because such claims do not enjoy the benefit of s 3 of the Compensation Act 2006, so that ARD victims may not receive all their compensation, but only a proportion of it, the damages being apportioned between Defendants, some of whom cannot be traced.

In reply, Mr Auburn submitted that the Defendant did not fail to take into account the product of stakeholder engagement. Mr Auburn argued that the duty conscientiously to take responses into account, as set out in Gunning, applies to consultation exercises rather than reviews. He relied on R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] 1 WLR 3923, in which the Court of Appeal observed that determining a breach of procedural fairness in relation to a non-statutory consultation process is a “context sensitive” task (paragraph 60), that fairness does not impose an obligation on a public body to accept submissions by specific consultees (paragraph 62), and that there are limits on the level of particularity to which a public body can be expected to descend when responding to representations made in the course of a consultation exercise (paragraph 63).

Applying those observations to the facts of this case, Mr Auburn submitted that the PIR was a review, rather than a consultation exercise, and so the Gunning standards of procedural fairness do not apply. He submitted that even if they do apply, the Defendant did take into account stakeholders’ views in a proportionate manner; the PIR, for example, made reference to claimants suffering from asbestos-related diseases, whilst also dealing with many other types of claim. In his submission, this plainly satisfied the test from R (Liverpool CC) v Secretary of State for Health [2003] EWHC 1975 (Admin), in which Stanley Burnton J held that only “purely cosmetic” consultation exercises, carried out with a “Machiavellian disingenuousness”, would fail to discharge the requirements of procedural fairness. Mr Auburn also argued that there was no significant evidence that the LASPO reforms had deterred ARD claims in the manner alleged by the Claimant. In so far as the reforms reduced the ability of claimants to receive “full compensation”, that was a foreseen consequence of the reforms. But in any case, he submitted that these issues were common to all personal injury claims and considered fully in the PIR.

The law applicable to substantive legitimate expectation based on a promise or representation was set out by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453, at para 60 in terms which were accepted by both Mr Hyam and Mr Auburn to be authoritative:

As regards whether a representation can be said to be “clear, unambiguous and devoid of relevant qualification” the question is how, on a fair reading of the promise, it would have been reasonably understood by those to whom it was made; see per Lord Dyson JSC in Paponette v Attorney General of Trinidad and Tobago [2012] 1 AC 1 at paragraph 30.

The next issue is whether a substantive legitimate expectation can be created by a promise or representation made to a large or diverse group of readers or listeners. A classic (though unreported) judgment on legitimate expectation is that of Laws LJ in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755. At paragraph 40 he asked: “What are the conditions under which a prior representation, promise or practice by a public decision-maker will give rise to an enforceable expectation of a substantive benefit?” He continued [emphasis added];

There is first an overall point to be made. It is that both these types of legitimate expectation are concerned with exceptional situations (see Lord Templeman in Preston at 864; compare ABCIFER [2003] QB 1397 per Dyson LJ at paragraph 72). It is because their vindication is a long way distant from the archetype of public decision-making. Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO [2007] EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy. This entitlement – in truth, a duty – is ordinarily repugnant to any requirement to bow to another's will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult.

But the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker's proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker's right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations – the two kinds of legitimate expectation we are now considering – something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is as well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that "[t]he categories of unfairness are not closed, and precedent should act as a guide not a cage".

Authority shows that where a substantive expectation is to run the promise or practice which is its genesis [it] is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured. Lord Templeman in Preston referred (866 – 867) to "conduct [in that case, of the Commissioners of Inland Revenue] equivalent to a breach of contract or breach of representations".

I will give two concrete instances from the cases. In Ex p Khan [1985] 1 All ER 40 the Home Office promulgated specific criteria for the admission of children into this country for the purposes of adoption here. The appellant sought entry for his prospective adoptive child. He relied in terms on the published criteria which he fulfilled. But he found his application blocked by a further, unannounced criterion which he did not satisfy. This court allowed his appeal.

Ex p Coughlan is a particularly strong case. Miss Coughlan was a very severely disabled lady. She and seven comparably disabled patients had been given a clear promise by the health authority that a particular facility, Mardon House, would be their home for life. But the health authority decided to close Mardon House which had ceased to be financially viable. The court said this at paragraph 86:

These cases illustrate the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced. I should add this. Though in theory there may be no limit to the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good. There are two reasons for this, and they march together. First, it is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to a diverse class. As Lord Woolf MR said in Ex p Coughlan (paragraph 71):

It is right to say that the second reason given by Laws LJ in paragraph 46 of his judgment – the possibility that a change of policy may be justified by a supervening public interest – is inapplicable in this case. But the first reason he gives is highly material. The PLM said that the Government intended to undertake a “more thorough and substantive analysis” than that which had been contained in the initial assessment of the effects of the whole of the reforms to civil litigation funding in Part 2 (and, separately, the effects of the whole of the legal aid reforms in Part 1). The class of people potentially affected was enormous: at the very least, all individual litigants in civil proceedings and their lawyers throughout England and Wales.

Mr Hyam did not shrink from the fact that the promise was to a large and diverse group but submitted that this was not a barrier to the court finding that the promise gave rise to a substantive legitimate expectation. He referred us to the decision of the Court of Appeal in R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2019] 1 WLR 929 where Coulson LJ said at 35-39:

These two types of case are different, and it is important to keep their differences in mind. Many of what might be termed the practice cases, such as those concerned with a failure to consult prior to a change of policy or procedure, stress the omission of any relevant promise or assurance: see, for example, the decision of this court in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755. In my view, the present case is a straightforward promise case, so the different considerations introduced by the practice cases do not arise here.

The two principal promise cases are AG of Hong Kong, and R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. In the former, a senior immigration officer announced that government policy was that each illegal entrant from Macau would be interviewed and his case 'treated on its merits'. The applicant was detained and not given the opportunity of making representations as to why he should not be removed. The House of Lords held that, where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise, provided the implementation did not conflict with the authority's statutory duties. Lord Fraser of Tullybelton said (page 638 E – G):

In Lumba, the Supreme Court arrived at the same answer, albeit by a different route (indeed, it appears that AG of Hong Kong was not cited to them). In that case, the published policy was that prisoners who were foreign nationals would be detained only when their continued detention was justified. However, between 2006 and 2008 the Home Secretary had applied an unpublished policy of blanket detention. Lord Dyson JSC said at paragraph 26 that "a decision-maker must follow his published policy…unless there are good reasons for not doing so". This statement of principle was not linked to specific knowledge of the policy on the part of any individual. He went on:

Accordingly, there is the highest possible authority for the proposition that, if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn (United Policyholders), or implementation interferes with that body's other statutory duties (A-G of Hong Kong).”

This was not a clear and unambiguous promise of any kind, and certainly not a clear and unambiguous promise to deal with the effects of LASPO on each significant class of litigation (whether ARDs or otherwise) individually;

It was not a specific undertaking directed at a particular individual or group;

The failure to deal with the concerns raised by the Claimant and Leigh Day was not equivalent in any sense to a breach of contract or breach of representation;

It cannot be described as unfairness amounting to an abuse of power;

In any event, it appears to us to be self-evident that the degree to which the PIR could be a thorough and substantive analysis would depend on the quality of the data available to the MoJ at the time of the review.

It is undoubtedly good practice for the effects of a major statute to be reviewed by the Government after it has been in operation for a period to see whether it has had unforeseen or undesired effects. But there is no legal or constitutional obligation to do so at all, let alone to do so in a particular degree of detail. We accept the submission of Mr Auburn that the “Gunning requirements” are not directly applicable to a consultation of this kind. Laws and Treacy LJJ observed in the West Berkshire case at [60]-[63]:

Turning next to the question of whether appropriate consideration was given to the consultation responses, we do not accept that that obligation translates into an obligation on the Minister to adopt the submissions made to him by respondents. In our judgment the Minister was entitled to consider the whole range of responses made to him, (together with all relevant information), and to form his own conclusion independently of the views of any particular section of consultees or indeed the views of his own advisers. The Response at paragraph 20 appears to us to represent the balance struck by the Minister after weighing up the various submissions made to him. …

Insofar as the judge was critical of a failure of the Response document to explain why a threshold of three units was not used instead of 10 units, as had been mooted at one stage, we do not consider that is was necessary for the Secretary of State to descend to that level of particularity. The requirements of a fair consultation do not require that sort of detailed analysis of options before the Minister. As Silber J observed in R (Maureen Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) at paragraph 78 "There is no obligation for a party to consult on each and every item of detail when there is a series of different models available as options." Moreover, the observations of Lord Woolf in Coughlan cited above reinforce this point. Those observations, it seems to us, are equally applicable to the process of consideration of consultation responses.”

It is unnecessary to decide whether the PIR would have been judicially reviewable if there had been no consultation at all with stakeholders: there was quite extensive consultation, including the meeting of 28 November 2018 between the Claimant and Leigh Day on the one hand and Mr Wright and some colleagues on the other at which the Claimant’s concerns were aired: see paragraph 35 above.

Mr Wright’s witness statements are not admissible as an aid to construction of the alleged promise relied on in Ground 1. But they are, as Mr Hyam accepted, admissible on the issue of whether he and his colleagues engaged with the concerns raised by the Claimant. The Lord Chancellor and his advisers (notably Mr Wright) were entitled to take the view that the data supplied, principally by the Claimant and Leigh Day, relating to ARDs did not amount to a sufficient body of evidence that LASPO Part 2 had seriously restricted access to justice for ARD claimants. They were not obliged to set out that view in the PIR, any more than they were obliged to set out and deal with any other particular response to the PIR consultation. Although ARD claims are often tragic cases, they are not the only type of personal injury litigation where entirely blameless claimants face great difficulties in obtaining compensation for their injuries. The PIR is a broad brush document addressed to the Justice Select Committee dealing with some of the major themes of LASPO. In the phraseology of

The claim for judicial review is dismissed.

Permission to appeal to the Court of Appeal is refused.

The Claimant is to pay the Defendant’s costs of the proceedings, summarily assessed in the sum of £5,000 pursuant to the CCO, within 14 days of the date of this Order.