Links marked ‘¶15’ refer to paras in our legal submission seen here.
Gofundme link to support Karen and Neils efforts
Background
Judge Jarman in Steven Thomas’ Cheltenham case in 2024 knowingly placed a resident inside an ICNIRP exclusion zone as he ruled that the LPA not looking at the exclusion zones was lawful. He ruled Cheltenham council were not required to check the zones as the council has no specific instruction from central government via the GPDO or the NPPF to do so, whilst failing to identify the material planning consideration pertaining to ‘unacceptable/incompatible use’ of the land.
In the same month Judge Jarman effectively ruled that the government do not have to be held to account for not instructing the Local Planning authorities to check the zones as part of regulatory procedures necessary to satisfy EECC obligations.
Not only as individual rulings are they deeply flawed:
- he re-worded Stevens Grounds in order to avoid the applicability of the EECC and he avoided identifying the material planning consideration ‘unacceptable use of land’, &
- he adopted the Defences position re Ofcoms regulation by way of ICNIRP being complete,
but taken together as twin rulings they demonstrate Judge Jarman’s blatant disregard for public health protection.
How does Judge Jarman reconcile his decision, considering that he has knowingly placed a vulnerable resident within a radiation exclusion zone?
The twin rulings raise profound concerns about the ethical implications of his judicial decisions. Whether this amounts to corruption is a valid and important question.
So, to turn to progress with the Objectors Rights case.
Neil and Karen appealed Judge Jarman’s judgment at the High Court, challenging his findings on timing and EECC preclusion, as well as his failure to provide reasons for the classification. However, Judge Falk upheld the judgment at the Court of Appeal.
We then appealed Judge Falk’s ruling. Once again, the appeal was returned to Judge Falk, who did not fully address the content of our appeal. Consequently, we filed another appeal. This appeal was again returned to Judge Falk for a ruling on the appeal of the appeal. While this process having the same judge reviewing their own judgment does not contravene court rules, we believe it was unlikely that Judge Falk would reassess her two previous judgments in a new light, even considering our detailed arguments. Indeed she has reaffirmed her initial rulings, adding that we are ‘abusing the court’, and she now claims that ‘our case’ is political. This provides Neil and Karen with more ammunition as Falks’ claims can be argued are a further breach of the CPR rules.
This is the analysis of the third appeal and provides clarity of the position before permission is sought to take it to the Supreme Court.
Combined Analysis of the December 20th Falks Judgment in response to our Nov 28th appeal, Including Timing Concerns and Breaches of CPR Rules
The judgment, delivered only three weeks after we filed our appeal, raises significant concerns about whether the court had sufficient time to fairly and thoroughly consider the detailed submissions and arguments we presented. This rushed timeline further supports our contention that the judgment contains incorrect or incomplete statements about our case, breaches key procedural rules, and fails to grapple with the substance of our appeal. Below, we outline these concerns with supporting references to our submission and the judgment:
1. Mischaracterization of Our Lacuna Argument (Failure to Comply with CPR 52.30):
The judgment dismissed our argument about the lacuna as a political issue, stating:
“The fact that the Appellants consider that there is a critical lacuna cannot affect the law that the court is bound to apply. Assertion of the importance of the issue makes no difference. Courts have no power to legislate. The Appellants’ complaint is a political, not legal, one.”
This conclusion is incorrect. In our submission, we explained that the lacuna represents a fundamental gap in regulatory protection, particularly concerning public health. We stated:
“The existence of a lacuna concerning the protection of the public from potential harm, injury, and nuisance in a regulatory system that is required to make public health imperative, is exceptional in itself” (Submission, ¶15).
We also demonstrated that this gap arose from the UK’s failure to fully transpose the EECC Directive, leaving local authorities and public bodies without clear regulatory guidance. This failure, we argued, constitutes exceptional circumstances requiring judicial review under CPR 52.30, which permits reopening decisions to avoid real injustice in exceptional cases.
The judgment’s dismissal of our argument fails to engage with the substantive legal implications of the lacuna, violating CPR 52.30 by not adequately addressing whether the issue was properly considered at earlier stages.
2. Errors in Addressing Timeliness (CPR 54.5 Misapplied):
The judgment stated:
“The claim for judicial review was significantly out of time, and the Appellants have not advanced any plausible legal arguments addressing this critical point.”
However, we provided detailed arguments in our submission showing that our claim is timely under paragraph 39(5) of Schedule 8 to the European Union (Withdrawal) Act 2018. We explained:
“Our challenge would, and did meet the ‘certain proceedings begun within three years of exit day’ criteria as stated in EUWA Explanatory note 409… Our 20 December 2023 claim was not ‘out of time,’ nor was it ‘precluded by the EUWA 2018’” (Submission, ¶5).
We cited Explanatory Note 409, which confirms that paragraph 39(5) allows claims based on pre-exit day events to proceed within three years. The court failed to engage with this argument, despite its importance. The judgment’s conclusion appears to misapply CPR 54.5 by ignoring the statutory provisions that extend the timeframe for filing such claims.
3. Failure to Engage with the Direct Effect of the EECC Directive (CPR 1.1 Violated):
The judgment rejected our reliance on the EECC Directive, stating:
“Section 4(2) of the 2018 Act specified that an EU directive would not give rights in domestic law where those rights had not been recognised by a European court or a UK court or tribunal in a case decided before exit day.”
This conclusion misrepresents our argument. It was impossible to bring it to court in that time period as it was only 10 days. We argued that obligations under the directive were retained as “assimilated law” and we clearly demonstrate the principles of effectiveness and equivalence and the applicability of Wells as an ‘of a kind case’ needed to fulfill the Brexit Law Schedule 8 39) 5 . We stated:
“The direct effect of EU Directives operating under Assimilated EU Law is not constrained/limited by law related to ‘certain government agencies’; nor to law alone; nor to regulation that applies to Ofcom” (Submission, ¶18).
The court’s failure to address these nuanced arguments breaches CPR 1.1, which requires the court to ensure that all issues are properly considered and parties are on an equal footing.
4. Improper Certification of Our Case as “Totally Without Merit” (TWM) (CPR 54.12 Misapplied):
The judgment certified our case as “totally without merit” (TWM), stating:
“Repeated applications of this nature abuse the processes of the court. This application warrants certification as totally without merit.”
However, under CPR 54.12(7), TWM certification requires a clear and separate justification, which the judgment fails to provide. The Wasif case emphasizes:
“The judge should only certify the application as TWM if satisfied that in the circumstances of the particular case a hearing could not serve such a purpose; the claimant should get the benefit of any real doubt.”
Our submission explicitly challenged the TWM certification, arguing:
“The certification of our application as ‘totally without merit’ was non-compliant with the Wasif case… and the absence of such justification has compromised our appeal” (Submission, ¶62).
By conflating the reasons for refusing permission with the TWM certification, the judgment breaches CPR 54.12(7) and the procedural fairness principles established in Wasif.
5. Misrepresentation of the Scope and Substance of Our Appeal (CPR 52.21(3) Breached):
The judgment mischaracterized our appeal as political, stating:
“The Appellants’ complaint is a political, not legal, one.”
This oversimplification ignores the clear legal basis of our claims. As we argued in our submission:
“We are challenging … restrictions that J Jarman and LJ Falk sought to place on due process, in respect to our legitimate challenge made subject to EUWA 2018 Schedule 8 ¶39(5)” (Submission, ¶3).
Our appeal raises substantive legal issues, including public health obligations under the EECC Directive and procedural fairness under the European Union (Withdrawal) Act 2018. Under CPR 52.21(3), the appellate court must determine whether the lower court’s decision was wrong due to errors of law or procedural injustice. The judgment’s failure to properly consider these points breaches this rule.
6. Failure to Grapple with Material Issues (CPR 1.1 and CPR 52.30 Violated):
The judgment claimed to have carefully considered our arguments but provided no substantive reasoning on key points, such as:
- The implications of the lacuna.
- The application of paragraph 39(5) of Schedule 8.
- The regulatory obligations of local authorities under the EECC Directive.
In our submission, we argued:
“The decisions made by J Jarman and LJ Falk fail demonstrably … to achieve anything close to justifiable finality in our claim through the … progress of our 6 May Appellant’s Notice” (Submission, ¶6).
The court’s failure to engage with these material issues violates CPR 1.1(2), which requires cases to be dealt with justly, and CPR 52.30, which mandates reopening decisions where exceptional errors have corrupted the process.
The judgment, issued only three weeks after we filed our appeal, fails to comply with CPR 1.1, CPR 52.21, CPR 52.30, and CPR 54.12. By mischaracterizing our arguments, misapplying procedural rules, and providing inadequate reasoning, the judgment undermines the fairness and integrity of the process. These breaches and procedural failings strengthen our position that the judgment is flawed and warrants reconsideration.
This litany of illogical rulings and inconsistent behaviour seems so at odds that we are called to question whether there is deliberate corruption involved, wilful blindness or mere incompetence ?
So we now proceed to the Supreme Court.
