The English Democrats Party is in the process of taking the government to court in an effort to prove the UK left the EU on 29 March 2019

The party under their leader, solicitor Robin Tillbrook, set out their case a couple of weeks ago.  You can read about it here. The government put forward its defence and now the party has outlined its counter.  It’s very much in legalese, so some may not understand it, but if you have any legal experience, it’s easier.  And even if you don’t understand all of it, there may be some parts of it you will understand.

Our counter to the UK Government’s Defence; English Democrats – v – The Prime Minister – Case No. CO/1322/2019
Our counter to the UK Government’s Defence in The Queen on the application of the English Democrats – v – The Prime Minister and the Secretary of State for Exiting the European Union – Case No. CO/1322/2019
Here is our barrister’s response to the Government’s efforts to undermine our case:-


Claim No. CO/1322/2019
B E T W E E N :

THE QUEEN (On the application of THE ENGLISH DEMOCRATS)  Claimant  – and –

THE PRIME MINISTER First Defendant – and –


Defined terms are as used in the Claimant’s Written Submissions


1                     The Defendants’ Summary Grounds of Resistance (‘the SGR’) seek to deprive the Claimant of the right to an oral hearing through a declaration that the Grounds are totally without merit (CPR r. 54.12 (7)).  Such a declaration would be wrong as this claim is at least ‘highly arguable’, as a retired lord justice considers.[1]   It is a claim which ‘on a quick perusal… discloses what might on further consideration turn out to be an arguable case…’ and should thereby be given permission.  ‘The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application’ (R v Inland Revenue Commissioners ex parte NFSESB Ltd [1982] A.C. 617 at p 642, perLord Diplock).

2                     This is not an attempt to engage in politics by another means but a question of whether the Crown may, without primary legislation and potentially indefinitely, extend the application of EU law, the obligations of membership and the fetter it places on Parliamentary sovereignty.  It is a claim that ‘merits full investigation at a full oral hearing’ with all the parties represented (R v Legal Aid Board ex parte Hughes (1992) 5 Admin. L. Rep. 623); and it is far from being a ‘misguided’ or ‘trivial’ (NFSESB)

3                     The Court will also be alive to the distinction between cases that are merely ‘unarguable’ and those that are also ‘totally without merit’ and so ‘bound to fail’, set out in Wasif v Secretary of State ([2016] All ER (D) 96 (Feb)) at paras 15 and 17 (3):

… cases in which the judge considering an application for permission… can see no rational basis on which the claim could succeed… are in our view…“bound to fail” (or “hopeless”)… But… the claimant [may] identif[y] a rational argument in support of his claim [which] the judge is confident… taking the case at its highest, wrong… On this approach, even though the claim might be said to be “arguable”… the prospect of it succeeding ceases to be “realistic”, if the judge feels able confidently to reject the claimant’s arguments…

…an oral renewal hearing… is.. an opportunity for the claimant to address the perceived weaknesses in the claim which have led the judge to refuse permission on the papers… The points in question may not always have been anticipated or addressed in the grounds and skeleton argument [and] [t]he judge should only certify the application as TWM if satisfied that… a hearing could not serve such a purpose; the claimant should get the benefit of any real doubt.

4                     The Defendants’ reliance on the disruptive consequences of the UK being found already to have withdrawn from the European Union and ‘all the recent events [and] consideration of the question by Parliament’ since the extension challenged (SGR para 1) have no bearing on whether it is lawful.  In the words of Lord Denning, ​“… ​even​ ​if​ ​chaos​ should result [it is not conceded that it would],​ ​still​ ​the​ ​law​ ​must​ ​be obeyed” (Bradbury v London Borough of Enfield​ ​(1967)​ ​3​ ​ER​ ​434,​ ​(1967)​ ​1 WLR​ ​1311​).

5                     Moreover, the Defendants have failed to contest any of the Claimant’s submissions in pre-action correspondence,[2] having been given the opportunity to do so.

6                     The Court should take into account the effect of removing the right to oral consideration of a claim of such constitutional importance through one judge considering only arguments made on paper.  It is only because of the stark consequences of such a decision that they are filed.


For a continuation of this item, go to Robin Tillbrook’s blogspot.

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