July 25, 2016 by IPAlchemist
The IP Alchemist and a couple of his colleagues from EIP went to Royal Courts of Justice on 19 July to watch the hearing to give directions and timetable to the various legal challenges to how, following the 23 June Referendum, the Government may take a decision to leave the EU and notify this decision to the EU under Article 50 of the Treaty on European Union.
The hearing was before Sir Brain Leveson, President of the Queen’s Bench Division, and Mr Justice Cranston, from 10am to around 11.30am. Listed for Court 3, it was moved at the last minute to Court 4 because of pressure of numbers attending (both for the parties and in the public benches).
There were four main cases in existence or contemplation: Dos Santos (generally referred to by the name of the claimant), and Mishcon de Reya, Bindmans, and Croft (generally referred to by the names of the respective instructing solicitors). The Dos Santos case was the only one where a claim form had actually been issued and they wished to be the lead case (or at least joint lead case), but there was an issue of them not complying with the pre-action protocols (being the only reason why their case was ostensibly further advanced), and they were also seeking a protective costs order, which the Mishcon claimants were not. Dos Santos mentioned they would potentially withdraw their request for a protective costs order in order to remove this stumbling block to their desire to be the lead case. Despite this, it was decided that the Mishcon de Reya case, represented by Lord Pannick QC, would be the lead case. It was agreed by the Court that correspondence should have the litigants’ names redacted in order to avoid a continuation of the abusive and threatening communications that Mishcon and their clients have experienced as a result of this case (which had been notified to the Court by a letter from Lord Pannick QC). Sir Brian Leveson indicated that the Court took these incidents very seriously, and would be giving consideration to whether they may amount to contempt of court.
All of the other cases were to be stayed, but permission would be granted for them to intervene in the main case. Dominic Chambers QC for Dos Santos appeared to indicate that, if not the lead claimant, his client would prefer not to intervene but to be heard as an interested party.
The Bindmans case was organised and crowdfunded by Jolyon Maugham QC of Devereux Chambers – he was present at the hearing but not acting for any party (he tweeted for part of the hearing but had to leave to give a lecture). Information about the case can be read on his blog here:
The Croft case is apparently on behalf of some UK citizens resident in France, presumably challenging the possible loss to them of EU residence entitlement.
In addition there were two litigants in person, not present at the hearing, Hardy and Jacobson. At least one of these may be wishing to challenge the constitutionality of the referendum, in addition to the constitutional requirements for decision to leave the EU under Article 50.
In view of the large number of claimants and potential claimants, it was agreed to use group email as the method of correspondence. Concern was expressed that email correspondence could lead to leaks and therefore potential further abuse. Sir Brian Leveson made clear that he expected confidentiality to be observed and would take a dim view of any of the material surfacing on any blogs.
The defendant, originally assumed at least by the Dos Santos team to be the Chancellor of the Duchy of Lancaster, should in fact be the Secretary of State for Exiting the European Union (“Minister for Brexit”). The defendant was represented by Jason Coppel QC.
Jason Coppel QC for the Government confirmed that the Government does not intend to make a notification under Article 50 before the end of the year. Accordingly, the hearing was set for mid-October. While not (as far as we understood) making a formal order, Sir Brian Leveson made clear that the Court expected to be informed if the Government changes its plans on timing. It appears to be assumed that there will be a leapfrog appeal, as Sir Brian Leveson believes this case meets the criteria to go straight to the Supreme Court, and no party challenged this. Sir Brian Leveson stated that the Supreme Court would be contacted immediately in order to ensure that there was space in the diary. The case will be heard by the Lord Chief Justice, but the other two judges are yet to be confirmed.
July 25th – deadline for Government to respond to the pre-action letters (so far the Government had not responded to any of the claimants, and Mr Coppel was unable to indicate whether any progress had been made on the responses yet)
July 29th- Mishcon de Reya claim to be issued
September 2nd- detailed response required from defendant
September 14th- skeleton arguments from claimant must be submitted
September 21st- deadline for submissions from interveners and interested parties (only if additional to points made by claimant)
September 30th- skeleton arguments from defendant must be submitted
October 17th- trial to be held for 2-3 days
If the hearing needs to be moved, for example if Article 50 to be activated earlier (or later) than currently planned, then other dates can be moved accordingly.
Sir Brian Leveson indicated [paraphrasing somewhat but more or less in his words]: You should have no doubt that the Court takes this case extremely seriously and will act expeditiously for its disposal; the Lord Chief Justice will require concision and expedition; and, concerning the timetable, there will be liberty to apply for variation but “not by much”, and case will “continue to be managed over the summer”.
Good sources of information about these cases are the Jack of Kent blog (see for example here) and its author David Green’s Twitter @DavidAllenGreen; and also on Twitter Joshua Rosenberg @JoshuaRozenberg. Other reports of this hearing are in The Guardian here and Full Fact here.