Legal challenge against lockdown reaches next stage of litigation

An entrepreneur who brought a legal challenge against the UK government’s lockdown is delighted to see it progress to the next stage of litigation. Despite the challenge initially being rejected by the High Court, the Court of Appeal overturned the decision. The judge reviewing the decision, Lord Justice Hickinbottom, said that although the High Court’s judgment was “impressive and cogent” and “may well be found to have been correct”, the claim should be heard in open court as it raised “fundamental issues” regarding the accountability of government ministers[1].

The challenge

Mr Dolan, who together with “other likeminded souls”, launched a crowdfunding page earlier this year to raise money for his legal fees; he has so far accumulated over £250,000 for the cause. On the page, Dolan says: “We believe that the Govt [sic] has acted illegally and disproportionately over the COVID 19 lockdown and we are taking action. By forcing people to stay at home, and forcing businesses to close, they are, we believe, in contravention of basic Human Rights under English Law, that of the right to enjoy your property peacefully.”[2]

The legal challenge takes the form of a judicial review, a process via which an individual or group of individuals can challenge the lawfulness of a decision made or action taken by a public body.

A ‘rolled-up hearing’

While Mr Dolan has pronounced himself “delighted” at the outcome of his appeal[3], it should be noted that Lord Justice Hickinbottom has only granted permission for the case to proceed to a so-called ‘rolled-up hearing’, in which judges will decide whether permission should be granted for the case to progress to a full appeal.

The rolled-up hearing is scheduled for the end of September and will likely be heard at London’s Court of Appeal.

A high-profile case

Understandably, judicial reviews against the government are usually accompanied by no small amount of media scrutiny, and this latest one challenging lockdown is no different. In our previous blog, which explored the government’s launch of an independent review of the judicial review process, we looked at some other high profile examples of successful judicial reviews, including those brought by businesswoman and campaigner Gina Miller in 2017 and 2019, dealing with the triggering of Article 50 and last year’s prorogation of parliament, respectively.

Other successful (and widely reported) judicial reviews include a high-profile campaign led by Joanna Lumley to allow Gurkha veterans to remain in the UK, a consultation into compensation for those affected by the HS2 high-speed rail project, which was ruled unlawful in 2009, and a challenge to the government’s decision to abolish the Independent Living Fund in 2013.

Next steps

If judges allow the case to progress to a full appeal, the government will be called upon to defend the introduction of lockdown measures, which are still imposing significant restrictions on public life. While the Court of Appeal decision was held virtually due to government restrictions, Lord Justice Hickinbottom ordered that the case should be “considered by the full court in open court, and the Applicants given any opportunity to make good their case at least on arguability.”

It goes without saying that Woodfines will be following this interesting case very closely.

-Alev Tonks 




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