The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
The claimant, Mr Girgis, is a urologist who wished to become a consultant. In order to be eligible for entry to the Specialist Register of the General Medical Council, an aspiring consultant must pass certain exams. The exams are administered by the defendant, the Joint Committee on Intercollegiate Examinations (JCIE), an unincorporated body, which acts as a parent body for ten speciality surgical boards (including the Urology speciality board) and for the four surgical Royal Colleges of Edinburgh, Glasgow, England and Ireland. In practice the administration and governance of JCIE is hosted within the Royal College of Surgeons Edinburgh, but it has no greater affiliation to that College than to the other three Colleges.
Mr Girgis failed one examination and, having exhausted JCIE’s appeal process, sought to bring a judicial review claim (on grounds that are not clear from the recent judgment). JCIE challenged the Administrative Court’s jurisdiction to hear the claim, by virtue of the Civil Jurisdiction and Justice Act 1982 (CJJA) and/or the Union with Scotland Act 1706 and/or on the basis of forum non conveniens. That challenge was heard as a preliminary issue, prior to consideration of the application for permission to bring the claim.
In very broad terms, CJJA provides that ‘in certain civil proceedings’, where the subject matter of the proceedings falls within the scope of EU Regulation 1215/2012 (the Regulation) and in which the defendant is domiciled within a part of the United Kingdom, the defendant can only be sued in the courts of that part. The Regulation applies “in civil or commercial matters” but does not apply to “revenue, customs or administrative matters”: the issue the Court therefore had to consider was whether or not Mr Girgis’ case was an administrative matter and thus outside or inside the scope of the Regulation. His Honour Judge Simon concluded that this was an administrative matter. The key consideration that led him to that conclusion were: the defendant was the sole provider of the relevant exams for the College and specialities; that, properly assessed, the situation was to be regarded “as characterising an extension of the relationship” between Mr Girgis and his professional regulator; and, the aim of the exams was the maintenance of proper standards which is “fundamentally, a manifestation of public protection, statutorily derived from the Medical Act 1983”.
In relation to the argument on the Union with Scotland Act 1706/forum non conveniens, His Honour Judge Simon ruled that although the Court of Session was another available forum to hear the case, it was not “clearly and distinctly more appropriate in the particular circumstances of this case” and in light of that the proceedings were to proceed in the Administrative Court. The principal factors that led the judge to his conclusion were: although JCIE is based in Edinburgh, it “operates on behalf of professional bodies outside of, as well as inside, Scotland and the qualification gained…permits inclusion on a professional register established by UK-wide legislation and which takes effect across the United Kingdom”; and, that the effect of JCIE’s decision under challenge “resonates upon the Claimant who at all material times has lived and worked in England, and by extension although to a lesser extent upon his employing Trust”.
The two main technical issues that the Court had to consider were firstly whether JCIE should have made an application under CPR 11 in order to pursue the jurisdiction challenge; and, secondly, the approach to take to applications by Mr Girgis for an extension of time, of one day, for filing the proceedings and an application by JCIE for an extension of time, of a longer period, for filing its acknowledgement of service.
CPR 11 makes provision for the circumstances in which a defendant seeks to dispute the jurisdiction of the Court and requires (CPR 11(4)) that an application must be made within 14 days of filing the acknowledgement of service and provides (CPR 11(5)) that if the acknowledgement of service is filed and the application required by CPR 11(4), the defendant “is to be treated as having accepted that the court has jurisdiction to try the claim”. However the notes accompanying CPR 11 in the White Book suggest that in judicial review proceedings “…the usual, and in practice safest, course of action, is for a defendant who wishes to raise any jurisdictional issue to raise that issue in the acknowledgement of service and to invite the court to refuse permission to apply for judicial review for that reason”. JCIE followed the course of action suggested in that note and applied successfully to vary the Court’s direction that an application in accordance with CPR Part 11 must be made. Mr Girgis challenged this on the basis that CPR 11 applied in full to judicial review proceedings and that the mandatory consequence set out in CPR 11(5) should follow. In the event, His Honour Judge Simon decided that he did not need to decide whether CPR11 applied in full to judicial review proceedings, expressing the view that the jurisdiction point need to be decided on substantive arguments and “not on a technical procedural point”. Although this approach of substance over form is to be welcomed, in future cases it may be prudent for a defendant to follow CPR 11 when challenging jurisdiction, to avoid the risk of a different judge taking a more rigorous approach.
His Honour Judge Simon also took a pragmatic approach to the two applications for extensions of time, allowing both. There is nothing out of the ordinary about this, save that it contrasts starkly with the approach of Mrs Justice O’Farrell DBE in R (The Good Law Project) v The Secretary of State of Health and Social Care [2021] EWHC 1782 (TCC), where she refused the claimant’s application, in judicial review proceedings, for an extension of time of one day for service of the sealed claim form (in circumstances where a copy of the sealed form had been emailed to the individual work addresses of the defendant’s lawyers acting in the case within the period allowed for service, but had not also been sent to the specific email address designated by the Government Legal Department for service of proceedings). The only material difference between the Girgis case and The Good Law Project case is that in the former each party consented to the other’s application whereas in the latter the defendant relied on late service of the claim form as the basis for the Court having no jurisdiction to hear the claim.
Whatever the reason for the defendant’s approach in The Good Law Project case – and one might speculate that it could be connected to the fact that this was just one of a series of hard fought claims brought by the Good Law Project in respect of COVID related procurement issues – it will be interesting to see if it presages a more general technical/procedural approach to judicial review claims by central government.
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