In court documents, legal battle lines drawn in CM’s claim for judicial review of Openshaw findings 

Lawyers for Chief Minister Fabian Picardo have argued that critical findings of him made in the Openshaw Report were “irrational” because they were not borne out by the facts heard in the McGrail Inquiry, court documents show.  

Mr Picardo is seeking a judicial review of 14 findings about him in the report and called on the Supreme Court to make a declaration that they were “unlawfully arrived at” and “legally invalid”, alongside any further relief the court thinks fair including an order that they be set aside or quashed. 

But the application for judicial review is being resisted by lawyers for Sir Peter Openshaw, the retired UK High Court judge who chaired the McGrail Inquiry. 

They argued the “extremely unusual” application had little prospect of success and amounted to “an attempt to re-argue the merits through a forensic attack on specific passages” of the inquiry’s final report. 

Mr Picardo’s claim was filed on February 4 by his lawyers Sir Peter Caruana, KC, Christopher Allan and Philip Dumas, and the statement of facts and grounds for judicial review runs to 58 pages. 

The counter arguments prepared by Julian Santos, KC, and Hope Williams, the lawyers for Sir Peter Openshaw, run to 36 pages and were filed late March. 

The documents only became publicly accessible last week after the court granted an extension to the normal period for the filings. 

In the application, lawyers for Mr Picardo said the claim related to “multiple findings and comments” by Sir Peter Openshaw that could be judicially reviewed because the grounds for challenge arose principally from “the absence or insufficiency of evidence” to sustain the findings, including “inconsistencies and contradictions” between them and procedural unfairness in how they were arrived at. 

The challenged findings relate to attempted interference by Mr Picardo in a criminal investigation called Operation Delhi; other improper conduct in relation to that investigation; misleading of or concealment from the Gibraltar Police Authority; and the sequence of events leading to former police Commissioner Ian McGrail’s early retirement. 

“The report makes several harshly worded, critical findings and comments in relation to the claimant [Mr Picardo], without any or sufficient legal justification, that seriously impugn his integrity and the propriety of his conduct and which have severely and unlawfully injured his reputation both professionally as a politician and a lawyer, and personally, and accordingly have interfered with both his constitutional/ECHR and common law right to respect for his reputation,” the claim said. 

Mr Picardo’s lawyers argued the findings of the Openshaw Report were judicially reviewable if arrived at “in a procedurally defective and otherwise unlawful way”. 

They said the challenged findings “damage the reputation of the claimant” and that, while a person’s reputation is protected by the law of defamation, the fact that the inquiry chairman, like a court, is immune from a defamation suit meant the only route available was judicial review. 

This, they added, was not to impugn Sir Peter Openshaw, a respected and experienced judge, but to argue it was “essential” the court exercise its “well-recognised role” in judicial reviews irrespective of the chairman’s distinction. 

“The claimant has a right, both at common law and under the Constitution not to have his reputation injured without sufficient justification,” they said in the claim. 

“At common law, every citizen has a right not to be defamed without justification.” 

“Severe criticism in a public inquiry accompanied by wide publicity affects that right.” 

In countering that position, lawyers for Sir Peter Openshaw said it was “very rare” for a court to undertake a judicial review of the final report of a public inquiry, “and even rarer for such claims to succeed”. 

They said the purpose of a judicial review is to challenge the legal validity of a decision, not for the court of review to examine evidence and form its own view or dissect a report line by line. 

They acknowledged that the application used the language of “irrationality”, “illegality” and “breaches of natural justice” in arguing the claim, adding that “in name alone, these are proper bases for judicial review proceedings”. 

“However, on closer inspection, most of the grounds are simply disagreements with the chairman’s factual findings, based on [the claimant’s] views on what weight should be given to conflicting evidence,” they said in a summary of the grounds contesting the claim. 

“That is not a proper basis for seeking judicial review.” 

They said the fact that a report had negatively impacted on someone’s reputation was not a basis for judicial review, adding “this is not a defamation claim”. 

In setting out Mr Picardo’s claim, his lawyers drilled in detail into the 14 findings in the report that are being challenged, explaining why they believe they were unfairly arrived at and were at times contradictory both in relation to each other and in terms of the evidence they were based on. 

Likewise, Sir Peter Openshaw’s lawyers argued why they believed this was not the case and the application would not succeed and should be dismissed. 

They asked the court to refuse to grant the application without a hearing or, if it sees fit, to set a date for a “rolled up” hearing that will consider both permission and the substantive merits of the claim. 

The court has yet to rule on whether the application can proceed.