EB, R (on the application of) v Director of Legal Aid Casework

This is my judgment in a judicial review of a decision by the Director of Legal Aid Casework (“the Defendant”) refusing the Claimant’s application for Exceptional Case Funding (“ECF”) under s.10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) following a hearing before me on 10 February 2026. Permission was granted on all three grounds by Richard Clayton KC sitting as a Deputy High Court Judge on 13 October 2025 along with an anonymity order that remains in place.

In the hearing before me, the Claimant, EB was represented by Mr Goodman KC and Mr Bandegani and the Defendant, the Director of Legal Aid Casework was represented by Mr Birdling and Mr Richardson. 

The Claimant, EB, is a woman in her late thirties who has been suffering from the eating disorder anorexia nervosa since she was a teenager. The illness has had a severe and debilitating impact on her physical and mental health. In 2022 she took part in a clinical trial for the use of psilocybin as a potential treatment for anorexia nervosa at Imperial College London. She says she found the treatment made a big difference to her condition with no notable side effects. She is keen to continue this treatment beyond the trial as she says that no other treatment has worked for her however the trial has now ended and psilocybin is a controlled substance that she no longer has access to.

The Claimant therefore wishes to make an application under regulation 5 of the Misuse of Drugs Regulations 2001 and section 7 of the Misuse of Drugs Act 1971 (“the MDA”) to allow her to be administered psilocybin by a medical team to treat her eating disorder, anorexia nervosa, a long-term and very serious mental illness. Current Home Office policy, however, does not permit applications by individuals which means that the application process is not straightforward in her case.

Due to her condition and the complexity of the process, the Claimant says she can only manage to make such an application with legal-aid funding. Therefore, with pro-bono legal assistance, she applied to the Defendant for exceptional case funding (“ECF”). That application was refused by the Defendant in a decision dated 11 February 2025 and that decision is the subject of the judicial review before me.

The three grounds of review in this case are:

In essence, the issues before me are the following:

The provision of legal aid is, in part, regulated by LASPO. Section 1 of LASPO imposes a duty on the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of LASPO. Section 9 provides for the civil legal services (i.e., advice and representation) described in Part 1 of Schedule 1 to the Act to be made available to an individual.

Those services do not include advice or representation in connection with the making of an application under reg 5 of the 2001 regs and section 7 of the MDA. Section 10, however, provides for civil legal services other than those described in Part 1 of Schedule 1 to be made available in the circumstances specified in that section. That section applies where the Director has made what is called “an exceptional case determination” in relation to the individual and the services and determines that the individual qualifies for the services (see section 10(2) and (3)).

LASPO section 10(2) requires two separate determinations: (a) an “exceptional case determination” and (b) a determination that the individual otherwise qualifies for the services in accordance with Part I of LASPO (including by reference to the “means” and “merits” tests prescribed elsewhere: see sections 21 and 11 respectively).

Section 10(3) of LASPO defines an exceptional case determination in the following terms:

“(3)

For the purposes of subsection (2), an exceptional case determination is a determination –

(a)

that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –

(i)

the individual’s Convention rights (within the meaning of the Human Rights Act 1998)

or

(ii)

any rights of the individual to the provision of legal services that are assimilated enforceable rights, or

(b)

that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.”

The meaning of section 10 was considered in detail in R (Gudanaviciene) v Director of Legal Aid Casework and another (British Red Cross Society intervening) [2014] EWCA Civ 1622; [2015] 1 WLR 2247, at [32].

Under the MDA, a “controlled drug” is defined (in section 2) as any substance or product specified in Part I, II or III of Schedule 2 to the MDA. Class A, B and C drugs are any of the substances and products specified in, respectively, Parts I, II and III of Schedule 2. Psilocybin is an ester of psilocin and is therefore specified in Part I of Schedule 2 MDA as a “class A” controlled drug. The consequence is that (absent a licence) possession of psilocybin is a criminal offence: s 5(1) MDA. The Secretary of State for the Home Department has a statutory power to except and/or authorise (by regulation) various activities which would otherwise be unlawful under the MDA. This power is conferred by section 7 of the MDA.

Section 7 provides that: (1) the regulations may make an activity lawful only if done under an authorisation or licence issued by the Secretary of State and in compliance with any conditions attaching thereto (section 7(2)); (2) the Secretary of State is required to exercise her power to make regulations so as to provide that it is lawful for specified professionals (doctors, dentists, veterinary practitioners and surgeons and pharmacists) to prescribe, administer, manufacture or be in possession of controlled drugs, when “acting in their capacity as such” (section 7(3)); (3) the Secretary of State may designate certain drugs as drugs that are excluded from the ambit of section 7(3) if of the opinion that it is in the public interest for production, supply or possession of such drugs to be wholly unlawful or unlawful except for the purposes of research or other special purposes or for it to be unlawful for practitioners, pharmacists or persons conducting a retail pharmacy business to do in relation to such drugs any of the things mentioned in section 7(3) except under a licence or other order of the Secretary of State (section 7(4)).

Article 8 of the ECHR provides for the right to respect for private and family life in the following terms:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The application for ECF related to ‘legal help’ for the purposes of putting together the application to the Home Office. The Criteria for determinations for legal help are set out in The Civil Legal Aid (Merits Criteria) Regulations 2013 at paragraph 32:

“An individual may qualify for legal help only if the Director is satisfied that the following criteria are met—

(a)it is reasonable for the individual to be provided with legal help, having regard to any potential sources of funding for the individual other than under Part 1 of the Act; and

(b)there is likely to be sufficient benefit to the individual, having regard to all the circumstances of the case, including the circumstances of the individual, to justify the cost of provision of legal help.”

Section 31(2A) of the Senior Courts Act 1981 provides that:

Before analysing the detailed arguments on specific legal issues before me, there is an overarching issue of public law which needs to be addressed. The parties argued for fundamentally different approaches to consideration of the case in the light of basic public law principles.

At the hearing, Mr Goodman for the Claimant submitted that, applying public law principles, if any of the grounds are made out, or if I find that the decision contains legal errors, the decision can be quashed and resubmitted for a new decision. As Mr Goodman put it, when considering the role of the court, the Defendant cannot “get away with making a terrible, deficient decision by saying Article 8 engages a question of law.”

Mr Birdling for the Defendant, however, submitted in his skeleton argument and reiterated at the hearing, that I should take a staged approach to my assessment of the grounds with the effect that I should only find for the Claimant if all three grounds are made out. Mr Richardson, for the Defendant, also argued that, even if all three grounds are made out, I should not quash the decision if I am of the view that the outcome would not have been substantially different regardless of the flaws in the decision.

It appears to me that Mr Goodman’s argument must be correct. It cannot be the case that an otherwise irrational and legally flawed decision could be saved because the decision maker happened not to make an error in their assessment of applicable human rights law or because the decision maker happened upon the correct outcome by chance. It is the quality of the decision itself that is determinative from a public law perspective, not the theoretical applicability of discrete legal frameworks to the circumstances of the case.

While I will address the main legal arguments before me below, the approach I will adopt in assessing the case law will maintain a focus on the quality of the decision complained of.

Much of the discussion before me focused on the applicability of Article 8 ECHR (the right to private and family life) to the circumstances of the case. The question of whether the right to private and family life set out in Article 8 of the European Convention on Human Rights is engaged is central to the Defendant’s arguments because section 10(3) of LASPO sets out the framework for decisions on ECF with explicit reference to individual Convention rights. In summary, if it is clear that no Convention rights could be engaged, it is submitted, a determination on exceptional funding is not required.

Section 10(3)(a) requires the Director to consider if a decision not to make an exceptional case determination, and thereby to refuse legal aid, would result in a breach of an individual’s Convention rights. If so, the Director must make an exceptional case determination. If the Director concludes that he cannot decide whether there would be a breach of a Convention right, he must then consider whether it is appropriate to make an exceptional case determination under section 10(3)(b) and should have regard to any risk that a failure to make a determination would result in a breach of a Convention right.

Both Article 6 and Article 8 arguments were considered by the decision maker, however it is now accepted that Article 6 is not engaged by the application, in part because of the current stage of the proceedings (i.e. before any decision has been made by the Home Office that could be subject to challenge) and therefore I will not consider Article 6 further.

In relation to the Claimant’s convention rights, the decision states:

“This case has been reviewed in line with Regulation 69(3) of The Civil Legal Aid (Procedure) Regulations 2012 and the determination that legal aid is not be granted [sic] is confirmed. It is not considered that there will be a breach (or risk of a breach) in the convention rights of the applicant should legal aid not be granted so that advice and assistance is provided under the Legal Help level of service.”

The decision addresses the issue of the application of Article 8 in the following terms:

“There is no specific right to health in the ECHR, although protections are provided in relation to safeguarding mental and physical well-being, including making sure that people can access the healthcare they need, have a say in the treatment they receive and for a remedy when mistakes are made. We have considered the latest “Health” factsheet as produced by the European Court of Human Rights as to the relevant case-law in this area.

It is not evident that this situation here is as above and concerns “healthcare” or “treatment.” This matter concerns the client’s proposal, as an individual, to possess and take psilocybin rather than be provided with medical or psychological healthcare or treatment, the therapeutic value of psilocybin treatment having, to date, not yet been proven scientifically.”

Mr Birdling made lengthy submissions on the difference between s 10(3)(a) and a finding of breach and s 10(3)(b) and an exercise of discretion. In summary, he urged the court to make its own finding on Article 8 and submitted that if the Defendant was correct in their assessment that Article 8 was not engaged, then the decision should stand.

By contrast, Mr Goodman put it to me that the Defendant’s arguments around Article 8 miss the mark because they focus on the potential for breach, rather than engagement of Article 8. To summarise, he argued that the Defendant’s position on Article 8 misconstrued the operation of Article 8 putting the focus on procedural aspects of Article 8(2) that could lead to a potential breach rather than the substantive scope of the article. The question for me was whether the circumstances of this case engage the essence of Article 8.

Making an application to the Home Office and that application being granted could be, he said, the difference between the Claimant’s survival and an untimely death; it could be the difference between a meaningful life and a short and constrained life – matters, he submitted, that go to the essence of the right to private and family life.

I agree with Mr Goodman’s analysis that the relevant question for me is whether the decision engages Article 8, not whether a refusal by either the Defendant or the Home Office would necessarily amount to a breach of the right. Those are questions that may well arise at a later stage in the process.

Mr Birdling urged me to make clear findings on the applicability of Article 8 which he said would be helpful; however, given the ample case law from domestic courts and Strasbourg cited about the scope of Article 8, I do not feel that it would be appropriate for me to go beyond the analysis that is necessary to decide the case before me. I will, therefore, focus on the way Article 8 is approached in the decision challenged and the lawfulness of that approach.

The decision correctly states that there is no discrete right to health in the ECHR while recognising that there are protections in relation to both mental and physical well-being and access to healthcare. There appears, therefore, to be no real dispute about the engagement of Article 8 in cases that clearly involve such matters. But the decision maker goes on to base their analysis of Article 8 on the incorrect assumption that the Claimant’s application does not relate to medical or psychological healthcare or treatment. That is clearly wrong.

As the Court of Appeal noted in R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647, at [86] per Underhill LJ “the engagement of article 8 is of its nature a question of fact to be determined on the facts of the particular case...”. The decision maker’s assessment of the applicability of Article 8 to this case is clearly premised on the misconception that the application relates to personal drug use for reasons other than healthcare.

The decision references the latest “Health” factsheet as produced by the European Court of Human Rights as its reference point for the relevant case-law in this area; but regardless of what the decision maker may have gleaned from the factsheet about the scope of Article 8, he has, quite simply, failed to apply it to the facts before him. He did not consider the circumstances of the applicant as they are set out in the application and backed up with medical evidence, instead he reached his decision based on the misapprehension that the application was for personal, unsupervised use of psilocybin. The fact that the application relates to supervised medical treatment is now accepted. It is clear that the decision was based on a false premise. As the decision maker failed to consider the facts of the case before him, he cannot have made an effective assessment of the engagement of article 8 in this case.

The section of the decision related to Article 8 does clarify that:

“As with Article 6 ECHR and for same reasons, should even this case have related to access to medical treatment, we do not consider that without the benefit of legal assistance your client would be unable to make an effective application without obvious unfairness.”

This seems to indicate that, had the decision maker realised at the time of the decision that the application related to access to medical treatment, he would have accepted that Article 8 was engaged. That the decision would ultimately remain the same based on an analysis of the procedural aspects of the right and the Claimant’s ability to make an application without ECF is a separate matter which I will address in relation to ground 2 and the principles in Gudanaviciene below.

The arguments submitted by the Defendant suggesting that Article 8 is not engaged seem to run contrary to the analysis in the decision itself which accepts that “access to medical treatment” would be within the ambit of Article 8 based on the ECtHR “Health Factsheet”.

Mr Birdling submitted that it is not for the court to “mark the decision maker’s homework” while asking me to make my own findings on the applicability of Article 8 to this case. However, looking beyond the extensive submissions on Article 8 before me to the actual decision challenged, it appears to me that the decision maker correctly assessed that Article 8 would be engaged by an application for access to medical treatment, even if a refusal would not necessarily amount to a breach.

It seems clear that Article 8 is engaged in circumstances where treatment is sought for a condition that has a profound impact on the applicant’s mental and physical health, the quality of her daily life and even her life expectancy given the high mortality rates associated with anorexia nervosa. These are matters that clearly have a sufficiently close or significant impact on the essence of the Claimant’s private life to engage Art.8: Oji, R (On the Application Of) v The Director of Legal Aid Casework [2024] EWHC 1281, [85].

Whether refusal of such treatment would or could amount to a breach of Article 8 is a separate matter. In circumstances where the Director concludes that he cannot decide whether there would be a breach of a Convention right, he must consider whether it is appropriate to make an exceptional case determination under section 10(3)(b). That is a discretionary decision having regard to any risk that a failure to make a determination would result in a breach of a Convention right. In order to exercise that discretion, the Defendant needed to make an assessment of risk.

Such a risk assessment was not done in the decision challenged because the decision maker failed to apply the law to the particular facts of the case. The legal error arises from the fundamental mischaracterisation of the facts upon which the decision should have been taken, not a misunderstanding of Article 8. Ultimately the decision maker failed to exercise discretion under section 10(3)(b) by having regard to the risk of breach of a convention right in the circumstances before him.

The meaning of section 10 of LASPO was considered in detail in R (Gudanaviciene) v Director of Legal Aid Casework and another (British Red Cross Society intervening) [2014] EWCA Civ 1622; [2015] 1 WLR 2247 and the Court of Appeal provided a set of principles that should be applied to such decision making to ensure that convention rights are “real and effective, not theoretical and illusory”.

At [46] the Court set out the general principles as follows:

“The general principles established by the ECtHR are now clear. Inevitably, they are derived from cases in which the question was whether there was a breach of article 6(1) in proceedings which had already taken place. We accept the following summary of the relevant case-law given by Mr Drabble: (i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts (Airey para 24, Steel and Morris para 59); (ii) the question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily (Airey para 24, McVicar para 48 and Steel and Morris para 59); (iii) it is relevant whether the proceedings taken as a whole were fair (McVicar para 50, P,C and S para 91); (iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through “in the teeth of all the difficulties” does not necessarily mean that the procedure was fair (P, C and S para 91); and (v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris para 62).”

At [71]-[72] the court went on to give clear guidance to the application of those principles to decisions determining article 8 rights and determinations on the grant of legal aid:

“… the significance of the cases lies not in their particular facts, but in the principles they establish, viz: (i) decision-making processes by which article 8 rights are determined must be fair; (ii) fairness requires that individuals are involved in the decision-making process, viewed as a whole, to a degree that is sufficient to provide them with the requisite protection of their interests: this means that procedures for asserting or defending rights must be effectively accessible; and (iii) effective access may require the state to fund legal representation.

72.

Whether legal aid is required will depend on the particular facts and circumstances of each case, including (a) the importance of the issues at stake; (b) the complexity of the procedural, legal and evidential issues; and (c) the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity.”

Applying those principles to the case before me, therefore, the determination of ECF should have taken account of the facts and circumstances of the case, weighing up the following factors in particular:

Of relevance to the principles in Gudanaviciene, the challenged decision includes the following assessment:

“Furthermore, in considering also whether without the benefit of legal assistance your client could make an effective application and without obvious unfairness. Your application indicates that just because there is no administrative procedure outlined in the guidance that allows for individuals to make the application, it does not mean individuals cannot apply.

Given the next steps outlined in paragraph 83 of your letter of 16/07/2024, in the light of the advice and assistance that has already been provided to the client – it is not considered that these steps are so complicated that the client, by having to do this without legal aid assistance, would be prevented from making an effective initial application.”

I turn, then, to an analysis of the decision in light of the three factors set out in Gudanaviciene [71].

Firstly, the decision maker patently failed to consider the importance of the issues at stake because the decision was based on the misconception that the application was not for supervised medical treatment but rather for unsupervised personal use of psilocybin. It is clear, therefore, that they did not grasp the issues at stake at all and therefore were not in a position to weigh up their importance.

The decision does make an explicit assessment of the complexity of the procedure based on the Claimant’s letter and the advice and assistance already provided. The Claimant may not like the conclusion, but I do not consider that assessment to be Wednesbury unreasonable on its face.

In relation to the third factor, however, there is no evidence that the decision maker considered in any meaningful way the circumstances of the Claimant and the particular challenges she has as a result of her condition. The Claimant has provided evidence of the impact of anorexia on her day-to-day life including the following outlined in her witness statement:

There is no mention in the decision of the Claimant’s personal ability to make the application without legal assistance. Even if one were to accept that the assistance already provided to the Claimant pro bono might mean that the initial application process itself may not be overly complex for an average person, the determination relies on a consideration of the Claimant’s ability to make the application given her personal circumstances. That has not been done.

Overall, therefore I conclude that the decision maker did not apply the principles set out in Gudanaviciene adequately or at all.

The challenged decision dealt with the “sufficient benefit” test as follows:

“As is indicated in Part 4.1 (13) of the Lord Chancellors Guidance Under s.4 of LASPO 2012, the “sufficient benefit” test, is primarily a test of whether a reasonable private paying individual of moderate means would pay for the legal advice and assistance and therefore the guidance on the reasonable privately paying individual test at paragraph 4.2 (5) of the guidance will be relevant in considering the application of the test.

The application seems to indicate that approximately £180,000 of public funds will be required in this matter. I do not consider that the reasonable individual of non-abundant financial resources, who could afford to pay privately but to do so would be something of a sacrifice, would be prepared to spend their own money to the above amount. Given the nature of the case, there is no reason to suppose that the proposed application has any real prospect of being successful in terms of the client being given unsupervised access to a substance without the Home Office considering there to be sufficient evidence of the longer-term safety, quite apart from issues of tolerance.”

It is now accepted by the Defendant that, in fact, the proposed figure for the application was around £40,000. It is also accepted that the application does not relate to “unsupervised access” to psilocybin, rather the application is for a licence to enable the Claimant to have medically supervised access to the drug in the way that she did during the clinical trial in 2022.

It does not require complex legal analysis to see that a decision based on a test of whether a reasonable private paying individual of moderate means would pay for legal advice and assistance costing £180,000 is meaningless in the context of an application asking for £40,000. The two figures are, quite simply, incomparable as any ‘reasonable private paying individual of moderate means’ could see.

Similarly, an application for personal, unsupervised use of a controlled drug cannot be compared to an application for strictly controlled and medically supervised access to the same drug. Again, this misconception of the circumstances of the case is absolutely obvious.

Simply put, the decision applies the law to a completely different set of facts than those in the application. The Defendant could not, therefore, have had regard to “all the circumstances of the case”, including “the circumstances of the individual”. This is an incurable error.

Mr Richardson argued before me that, regardless of my earlier findings, I should not quash the decision. He relied on section 31(2A) of the SCA arguing that the outcome for the applicant would not have been substantially different if the decision maker had not erred in law or failed to take account of EB’s circumstances.

He urged me to consider Mr Scott’s evidence set out in his witness statement to the effect that, even if he had understood the correct factual basis for the application at the time of the decision, it would not have affected his conclusion that ECF should be refused under the “sufficient benefit” test.

Mr Goodman submitted that the Defendant could not rely on section 31(2A) of the SCA in circumstances where they had not gone about the decision-making process properly in the first place.

Mr Richardson produced a new authority, Cava Bien Ltd, R (On the Application Of) v Milton Keynes Council [2021] EWHC 3003 (Admin) at the last minute in the hearing which he said supported his argument with the proper approach outlined by Kate Grange KC sitting as a Deputy High Court Judge at [52] of that judgment.

Mr Goodman pointed out, in response to the late submission, that there was already ample Court of Appeal authority before the court to provide guidance on the issue. Despite the extremely late submission of the authority, I note that, on consideration of [52], it does not really assist the Defendant in any event. While the principles are helpfully set out in Cava Bien, they broadly reflect those cited in previous case law.

As a large part of the Defendant’s case rests on this point, it is worth considering the principles set out by the Court of Appeal citing UTAG [25] in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at [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” (see the judgment of Sales L.J., as he then was, in R. (on the application of Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] 1 All ER 142, at paragraph 89).”

As to the admissibility of that “ex post facto” evidence, I was asked to consider the principles set out in the case of R (United Trade Action Group Ltd) v Transport for London [2021] EWCA Civ 1197; [2022] R.T.R. 2 at [25] (“UTAG”) which are illuminating, not only to the question of admissibility but, more broadly to the way in which such evidence should be considered by the court: “The law governing the admissibility of “ex post facto” evidence in proceedings for judicial review is already mature. There is an ample body of authority to indicate the correct approach. Without seeking to be exhaustive, we can identify these seven points in the light of the relevant cases:

(1)

The court will always be cautious in exercising its discretion to admit evidence that has come into existence after the decision under review was made, as a means of elucidating, correcting or adding to the contemporaneous reasons for it (see the judgment of Hutchinson LJ, with whom Nourse and Thorpe LJJ agreed, in R. v Westminster City Council Ex p. Ermakov [1996] 2 All E.R. 302, at 315 and 316). The basis for this principle is obvious. Documents or correspondence or other explanatory evidence generated after the event cannot have played any part in the making of the challenged decision (see the judgment of Coulson LJ, with whom Lewison and David Richards LJJ agreed, in Kenyon v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 302 at [27]–[30]). The same may be said of the professional views of officers who were not involved in advising the decision-making body when it took its decision, or of those who were, but seek later to add to the advice they actually gave. The court must avoid being influenced by evidence that has emerged after the event, possibly when proceedings have been foreshadowed or issued. So the need for caution is plain.

(2)

In the words of Green J, as he then was, in Timmins v Gedling Borough Council [2014] EWHC 654 (Admin), “[there] is no black and white rule which indicates whether a court should accept or reject all or part of a witness statement in judicial review proceedings”. Witness statements can serve different purposes—making admissions, commenting on documents disclosed, explaining why an authority acted as it did or failed to act, or seeking, as Green J put it, “to plug gaps or [lacunae] in the reasons for the decision or elaborate upon reasons already given” ([109]). A claim for judicial review must focus on the reasons given at the time of the decision. Subsequent second attempts at the reasoning are “inherently likely to be viewed as self-serving” ([110]).

(3)

Evidence directly in conflict with the contemporaneous record of the decision-making will not generally be admitted (see the judgment of Jackson LJ, with whom Rimer and Lewison LJJ agreed, in R. (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290 at [64]). But in the absence of such contradiction, there is no reason in principle to prevent “ex post facto” evidence being admitted if its function would be “elucidation not fundamental alteration, confirmation not contradiction” (see the judgment of Hutchinson LJ in Ermakov, at 315h–j). That is the touchstone. As Elias J, as he then was, said in R. (Hereford Waste Watchers Ltd) v Herefordshire Council [2005] Env. L.R. 29, at [46], it is “proper to allow further explanation in an appropriate case”, if the decision-maker’s reasoning lacks the “clarity or detail which is desirable”.

(4)

Sometimes elucidatory evidence will be appropriate and necessary, sometimes not. But even where the evidence in question is merely explanatory, the court will have to ask itself whether it would be legitimate to admit the explanation given. Circumstances will vary. For example, as was emphasised by Singh LJ, with whom Andrews and Nugee LJJ agreed, in Secretary of State for Housing, Communities and Local Government v Ikram [2021] EWCA Civ 2 at [58], when the court is dealing with a challenge to a planning inspector’s decision it will have in mind that “there is an express statutory duty … for a planning inspector to give reasons for his decision”. Thus, in Ioannou v Secretary of State for Communities and Local Government [2013] EWHC 3945 (Admin) Ouseley J strongly discouraged the use of witness statements of inspectors to amplify or enhance the reasons given in their decision letters. He stressed that “[the] statutory obligation to give a decision with reasons must be fulfilled by the decision letter, which then becomes the basis of challenge”,that “[a] witness statement should not be a backdoor second decision letter” ([51]), and that such a witness statement “would also create all the dangers of rationalisation after the event …” ([52]). The Court of Appeal in the same case approved, obiter, Ouseley J’s observation at [51] ([2014] EWCA Civ 1432, at [41]).

(5)

It is not likely to be appropriate for the court to admit evidence that would fill a vacuum or near-vacuum of explanatory reasoning in the decision-making process itself, expanding at length on the original reasons given. Such evidence may serve only to demonstrate the legal deficiencies for which the claimant contends (see R. (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152; [2018] P.T.S.R. 43, at [35] and [36]).

(6)

When the admissibility of evidence is in dispute in a claim for judicial review, the court’s approach should be realistic, and not overly exacting. Rarely will it be necessary for a judge to carry out a minute review of every paragraph and sentence of a witness statement, paring the statement down to an admissible minimum and formally excluding the rest, or admitting evidence for some grounds of the claim and ruling it out for others. The court should not be drawn too readily into an exercise of that kind. It finds no support in the case law. Excising passages of text from an otherwise admissible witness statement may be a somewhat artificial exercise to perform, and it may serve no useful purpose. It may make no difference to the judge’s consideration of the issues in the claim. Or it may risk the loss of valuable context or clarification.

(7)

Judges will usually be able to distinguish between genuine elucidation of a decision and impermissible justification or contradiction after the event, without having to rule on applications to exclude parts of the opposing party’s written evidence or documents it seeks to adduce. It follows that the best way for the court to proceed may be to receive the contentious evidence “de bene esse”, and, having heard argument on the issues in the claim, simply to disregard any of the evidence that is irrelevant or superfluous, rather than embarking on a painstaking assessment of strict admissibility.”(underlining for emphasis)

Mr Richardson argued that Mr Scott’s witness statement is, “elucidatory evidence” that I should consider admissible in line with the fourth principle set out in the UTAG judgment. It could then assist me when weighing up the question of whether a new decision would be substantially different.

Mr Goodman suggested that, regardless of the admissibility of the statement, I should give it little weight for the principled reasons set out in the UTAG judgment.

Taking the approach proposed by the Court of Appeal in UTAG [25(7)], I find that, regardless of the technical question of admissibility, the evidence in Mr Scott’s witness statement as to what his decision would have been if it had been based on the actual facts of the case (rather than fundamentally different facts) is ultimately irrelevant to my assessment of the case. It does not elucidate or clarify the decision challenged or the process that led to it. It does not even “fill a vacuum or near-vacuum of explanatory reasoning in the decision-making process itself, expanding at length on the original reasons given” which would, in itself be inappropriate. It is evidently a “backdoor to a second decision” and creates “all the dangers of a rationalisation after the event.” Indeed, it is a rationalisation based on an alternative set of facts to those actually considered in the decision challenged.

While I have heard Mr Richardson’s strenuous arguments on the point, the “highly likely” test remains a high bar with the burden on the Defendant to show that it has been crossed (Cava Bien [52]). I find it impossible, in the circumstances, for the court to make such an assessment without “straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review” (Plan B Earth at [273]). This would go beyond ‘marking the Defendant’s homework’, effectively asking the court to do the Defendant’s homework for him. That would be entirely inappropriate.

It is frankly astonishing that, in a case about the allocation of public funds, even once permission had been granted on all three grounds, the Defendant chose to continue to defend an indefensible decision at trial. In doing so, they incurred significant costs instructing counsel to put forward complex legal arguments in an effort to cure the obvious fundamental defects of the decision instead of simply reissuing a decision based on the actual circumstances of the case at hand.

It may turn out to be, as Mr Richardson suggests, that there will be no significant difference in the outcome, but the likelihood of that is impossible for me to assess without effectively stepping into the shoes of the primary decision maker to look at all the circumstances and reach my own conclusions. That would be inappropriate and beyond the scope of judicial review. What is clear from the text of the decision is that the decision maker did not consider the circumstances of the case properly, or at all. The decision is so fundamentally flawed that it is far beyond my powers to rescue it.

For these reasons, I find that the decision is unlawful on all three grounds:

The decision of 11^th February 2025 is therefore quashed and the Defendant should now, in accordance with this judgment, issue a fresh decision.

Costs for the Claimant.