McDougall and another (Appellants) v Secretary of State for Health and Social Care and another (Respondents)

Permission to Appeal application lodged

Case summary
Appeal
Previous proceedings

Case summary

Case ID

UKSC/2025/0071

Parties

Appellant(s)

(1) Neil McDougall (2) Karen Churchill

Respondent(s)

(1) THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE

(2) SECRETARY OF STATE FOR LEVELLING UP, HOUSING & COMMUNITIES

Issue

Was the Court of Appeal correct to dismiss the Appellant’s application?

Facts

On 20 December 2023, Mr McDougall and Ms Churchill (“the Appellants”) issued a claim for judicial review against the Secretary of State for Health & Social Care and the Secretary of State for Levelling Up, Housing & Communities (“the Respondents”). The claim is concerned with the transposition of the EECC Directive (2018/1972) through the Electronic Communications and Wireless Telegraphy (Amendment) (European Communications Code and EU Exit) Regulations 2020 (SI 2020/1419) on 21 December 2020 (“the JR claim”). On 26 April 2024, HHJ Jarman KC dismissed the Appellants’ application for permission for judicial review and certified the claim as being totally without merit (“the Jarman Order”). The reasons for the refusal were: a) it was significantly out of time because the challenged decision arose in 2020; b) it relied on the direct application of a Directive contrary to EU withdrawal legislation; and c) The UK government adopted the International Commission on Non-Ionizing Radiation Protection Guidelines before the EECC Directive and further implementation was not required. On 6 May 2024, the Appellants applied to the Court of Appeal for permission to appeal the Jarman Order. On 31 July 2024, Falk LJ refused permission to appeal against the Jarman Order on the papers (“the Falk July 2024 Order”). Falk LJ held that the appeal has no real prospect of success and there was no other compelling reason why the appeal should be heard. The Appellants then made two further consecutive applications: 1) they applied to re-open the refusal of permission in the Falk July 2024 Order pursuant to CPR r. 52.30(1), which was refused on the papers by Falk LJ on 31 October 2024 (“the Falk October 2024 Order”); 2) The Appellants made a second application to re-open the Falk July 2024 Order pursuant to CPR r. 52.30(1), which was refused on the papers by Falk LJ on 19 December 2024 and certified as being totally without merit (“the Falk December 2024 Order”). On 23 January 2025, the Appellants filed an application notice with the Court of Appeal by reference to s.6D of the European Union (Withdrawal) Act 2018 seeking relief that included an incompatibility order and a stay of execution of the previous orders made in the proceedings (“the 2025 Application”). On 24 January 2025, Master Bancroft-Rimmer directed that the 2025 Application could not be considered because there were no live proceedings and the Court of Appeal had no jurisdiction to hear it (“the Bancroft-Rimmer Dismissal Decision”). The Appellants sought a review of the Bancroft-Rimmer Dismissal Decision pursuant to CPR 52.24(5). On 7 February 2025, Dingemans LJ affirmed the Bancroft-Rimmer Dismissal Decision because the Court of Appeal had no jurisdiction to grant the orders sought by the Appellants (“the Dingemans Review Order”). The Appellants now seek permission to appeal to the Supreme Court.