What is ‘totally without merit’?
The claimant had sought judicial review. Her case had been certified as being ‘totally without merit’, thus denying to her any opportunity to renew her application for leave at an oral hearing, leaving only recourse to a judge of the Court of Appeal to consider the papers and decide whether or not to grant permission.
Held: The appeal failed. the phrase ‘totally without merit’ used in CPR 54.17(1) means ‘bound to fail’ and is not confined to claims which are abusive or vexatious. The court considered that this approach contained two important and sufficient safeguards – one of them being that the application would be carefully considered and the other that ‘the claimant still has access to a judge of the Court of Appeal’. Maurice Kay LJ (with whom the other members of the court agreed) said that CPR 54.12(7) so applied does not detract from the vital constitutional importance of the judicial review jurisdiction and is consistent with the overriding objective of the CPR.
Lord Dyson said: The phrase ‘totally without merit’ is now firmly embedded in our Civil Procedure Rules. It is perhaps unfortunate that the word ‘merit’ is included in the phrase. We are familiar with the notion of a claim being meritorious or having merit, connoting the idea that the claim is just or ‘is in accordance with the merits’, but the word ‘merit’ in the phrase ‘totally without merit’ does not have this meaning. Although the court always seeks to do justice, the purpose of ‘totally without merit’ is to enable the court to root out claims which are bound to fail, and, for the reasons given by my Lord, I would construe that phrase as meaning ‘bound to fail’.
Lord Maurice Kay said: ‘I return to the purpose of CPR 54.12.7. It is not simply the prevention of repetitive applications or the control of abusive or vexatious litigants. It is to confront the fact, for such it is, that the exponential growth in judicial review applications in recent years has given rise to a significant number of hopeless applications which cause trouble to public authorities, who have to acknowledge service and file written grounds of resistance prior to the first judicial consideration of the application, and place an unjustified burden on the resources of the Administrative Court and the Upper Tribunal. Hopeless cases are not always, or even usually, the playthings of the serially vexatious. In my judgment, it would defeat the purpose of CPR 54.12.7 if TWM were to be given the limited reach for which Mr Malik contends. It would not produce the benefits to public authorities, the Administrative Court or its other users which it was intended to produce. I have no doubt that in this context TWM means no more and no less than ‘bound to fail’. There is no reason to suppose that the judge did not apply that test in that way or that he applied it erroneously in the present case. ‘
Lord Dyson MR, Maurice Kay, Sullivan LJJ
[2014] EWCA Civ 1091, [2014] 1 WLR 3432, [2014] WLR(D) 249
Bailii, WLRD
Civil Procedure Rules 54.12(7)
England and Wales
Citing:
Cited – Bhamjee v Forsdick and Others (No 2) CA 25-Jul-2003
The Court set out the range of remedies available to protect court processes from abuse by litigants who persist in making applications totally devoid of merit. The courts are facing very serious contemporary problems created by the activities of . .
Cited – Sengupta v Holmes and Others, Lord Chancellor intervening CA 31-Jul-2002
The appellant had applied for leave to appeal to a single judge, who had refused the application. He appealed and was granted leave by two judges. He then objected when the single judge who had refused leave was included in the panel of judges to . .
Cited – Perotti v Collyer-Bristow (A Firm) CA 21-May-2004
The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after . .
Cited by:
Cited – Imbeah, Regina (on The Application of) v Willesden Magistrates’ Court and Another QBD 14-Jul-2016
The claimant applied for judicial review of a decision of a Magistrates Court to convict her of driving with excess alcohol. The grounds were that the district judge acted unlawfully in proceeding with the trial without disclosure by the prosecution . .
Lists of cited by and citing cases may be incomplete.
Judicial Review
Leading Case
Updated: 09 November 2021; Ref: scu.535440