A High Court judge has found that unincorporated associations have capacity to bring public law claims. The ruling is potentially of wide application in public law cases, writes Jenny Wigley.
In a detailed judgment handed down this month, Mrs Justice Lieven has ruled that, as a matter of principle, unincorporated associations have capacity to bring both judicial review proceedings and statutory challenges in their own name. Whilst in certain circumstances the addition or substitution of named individuals may be necessary for practical reasons such as security for costs, or where there is uncertainty about membership of the body, the inclusion of named individuals is not necessary for the validity of the claim.
Aireborough Neighbourhood Development Forum had made an application under s.113 of the Planning and Compulsory Purchase Act 2004 challenging the decision of Leeds City Council to adopt the Leeds Site Allocations Plan. The council and two affected developers argued that, as an unincorporated association, the Forum did not have legal capacity to bring the claim, and that substitution was time-barred.
The Forum has a written constitution, a bank account, a steering group and an identifiable membership. It had been designated as a Neighbourhood Forum on 15 July 2014 but this designation had expired on 15 July 2019, a few weeks before the claim was lodged. The Forum had applied for re-designation on 13 July 2019 but that application remained outstanding.
The Court rejected the council’s argument that the Forum’s lack of a current statutory designation prevented it from being a ‘person aggrieved’. The Forum is a local body with a constitution and purposes relating to the good planning of Aireborough which had participated in the examination of the plan under challenge. It has sufficient interest whether or not it is statutorily designated as a Neighbourhood Forum.
The Court accepted the claimant’s argument that the Forum had capacity to bring the proceedings as a ‘person aggrieved’. The definition of ‘person’ in the Interpretation Act includes a ‘body of persons corporate or unincorporate’ and Lieven J did not consider that the context of s.113 indicated any contrary intention such that any different interpretation should apply.
The Court agreed with the claimant that a distinction is to be drawn between public law and private law litigation: in private law the individual has to be able to show that they have a legal right which has been infringed, therefore it is fundamental that they have legal capacity to sue. In contrast the critical question in judicial review or statutory challenges is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision. The claim is “invoking the powers of the court to exercise its supervisory jurisdiction of the court to quash curb or correct decision of bodies subject to public law. The personal rights of individual applicants, as in the present case, may never be in play”: per Turner J in R v. Traffic Commissioner for the North Western Traffic Area, ex parte Brake  C.O.D 248.
The Judgment in Aireborough Neighbourhood Development Forum v Leeds City Council (Rev 2)  EWHC 45 (Admin) is a thorough review of the case law on this topic and is potentially of wide application in public law cases.
The s.113 claim is now to be heard at a rolled-up hearing before Lieven J in early February 2020.