The Court of Appeal is to look under the bonnet of a controversial Judicial Appointments Commission recruitment process after the master of the rolls declared in a district judge’s long-running legal battle that it was in the public interest.

Sir Geoffrey Vos today granted district judge Kate Thomas – whose application to join the circuit bench was unsuccessful - permission to appeal a December ruling of the High Court that her grounds for challenging the legality of ‘statutory consultation’ were unarguable.

‘Statutory consultation’ requires the commission to consult a person who has held the office that candidates are applying for, or someone who has other relevant experience, to ensure that candidates are of good character and have the relevant capability for the role.

Granting limited permission, Vos said: 'I have borne in mind the importance of this case and the public interest in maintaining a scrupulously fair and transparent judicial appointment process. I recognise there is much to be said for the arguments advanced by the JAC this morning in terms of the importance of confidentiality for both references given and statutory consultation provided. But I feel that, in the exceptional circumstances of this case, the challenges brought to the process by [Thomas] would be better considered on all the evidence at a full judicial review hearing rather than being dealt with at an inevitably less detailed permission hearing.'

Judge Vos

Master of the rolls: In public interest for fairness of JAC's procedure to be examined at full hearing

Source: Avalon

Vos said fairness was the central issue being raised by Thomas’s claim and ‘whether the JAC is right to proceed on the basis its obligations of confidentiality to the consultees mean it cannot in many if not most circumstances give candidates an opportunity in fairness to comment on adverse matters raised by consultation responses’.

It was ‘in the public interest for the fairness of the JAC's procedure to be examined at a full hearing', Vos said. ‘I conclude it is arguable there are circumstances in which the JAC may be obliged as a matter of fairness to seek the consent of consultees, to seek disclosure of what they said or give candidates a gist of the comments without identifying the source,’ he added.

During submissions, Sir James Eadie, for the JAC, told the court that it remained open for Thomas to reapply to join the circuit bench. This prompted Vos to stress that ‘one should not underestimate the pressures on applicants in these competitions… These competitions are really important to real people who are serving our society… I would not want anyone to think we take this lightly and say "If at first you don’t succeed, try, try, try again." That’s not the right approach. These competitions are of tremendous importance to people and taken really to heart’.

Vos heard today's case alongside Lord Justice Underhill and Lady Justice Nicola Davies, who agreed with his decision.

A two-day judicial review hearing will take place later this year. The case will be retained by the Court of Appeal instead of returning to the High Court. 

Thomas was represented by Doughty Street Chambers' Anthony Vaughan and Finnian Clarke, who were instructed by RRM Law. The Judicial Appointments Commission was represented by Blackstone Chambers' Sir James Eadie KC and Old Square Chambers' Robert Moretto, instructed by the Government Legal Department.