Henry v British Broadcasting Corporation
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KUTIZAMA PICHA ZAKE NA VIDEO ZAKE ALIZO PIGA AKIWA UCHI NI RAHISI BONYEZA HAPA CHINI
[2005]
EWHC 2503 (QB)
CIVIL PROCEDURE
QUEEN’S BENCH DIVISION
GRAY
J
27,
28 OCTOBER, 11 NOVEMBER 2005
Costs – Order for costs – Conditional fee
agreement – Costs capping order – Claimant with conditional fee agreement and
after-the-event (ATE) insurance policy – Claimant not disclosing details of
policy until shortly before trial date – Details of policy revealing
substantial potential costs exposure for defendant – Defendant applying for
costs capping order – Whether costs capping order appropriate.
The claimant brought proceedings against the BBC
claiming damages for libel. The
claimant’s solicitors informed the BBC that they were acting under a
conditional fee agreement. The
percentage uplift payable by the BBC in the event that the claim succeeded (the
success fee) was not disclosed but it was thought that it was likely to be
100%. After-the-event (ATE) insurance
was in place; the limit of indemnity was £100,000 and the policy contained
exclusion clauses. The claimant’s
solicitors did not disclose the details of the policy to the BBC. The allocation questionnaire filed by the
claimant contained an estimate of £360,000 excluding value added tax (VAT), the
success fee, and any claim in respect of the premium payable for the ATE
insurance. The BBC requested information
as to the level of cover and for copy of extracts of the policy, but the
claimant’s solicitors refused on the ground of privilege. Some six weeks before the trial was due to
start, the BBC issued an application for disclosure of the policy and a costs
capping order. The claimant’s solicitors
then disclosed the policy. It served a
revised cost estimate of £694,000 (excluding VAT, success fee, and premium). The BBC acknowledged that its application for
a costs capping order had been made at a very late stage, but submitted that
the delay in applying arose through no fault of the BBC.
Held – As the purpose of a capping order was
to enable the capped party to plan the appropriate level of expenditure to
bring the case to trial at a cost which was in line with the amount of the cap,
the imposition of a costs cap very close to trial, as in the circumstances of
the instant case, would in effect penalise the claimant. It would be wrong to use the costs capping
jurisdiction in a way which would deny her the benefit of a conditional fee
agreement to which she was statutorily entitled. In general, where costs were running at high
levels and a conditional fee agreement with a substantial success fee was in
place, the court was likely to be ready to intervene. But the court could not intervene of its own
motion. It was up to the parties to keep
themselves informed of their opponent’s estimated costs, if necessary by making
an application to the court for an order that an estimate be provided. In the instant case the application for a
cost capping order had been made too late.
Accordingly, the application would be refused (see [36]–[40], below).
King v Telegraph Group [2005] 1 WLR 2282
applied.
Per curiam.
The amount of cover and the existence of material exclusions in an ATE
policy are of obvious relevance to the opposite party, who must be in a
154
position to make informed choices as to the conduct
of the litigation (see [23], below).
Notes
For the meaning and nature of conditional fee agreements,
see 44(1) Halsbury’s Laws (4th edn reissue) paras 188, 189.
Cases referred to in judgment
AB v Leeds Teaching
Hospitals NHS Trust, In the matter of the Nationwide Organ Group Litigation
[2003] EWHC 1034 (QB), [2003] 3 Costs LR 405.
Al-Koronky v Time
Life Entertainments Group Ltd [2005] EWHC 1688 (QB).
Campbell v MGN Ltd
(No 2) [2005] UKHL 61, [2005] 4 All ER 793, [2005] 1 WLR 3394.
King v Telegraph
Group Ltd [2004] EWCA Civ 613, [2005] 1 WLR 2282.
Leigh v Michelin Tyre
plc [2003] EWCA Civ 1766, [2004] 2 All ER 175, [2004] 1 WLR 846.
Lownds v Home Office
[2002] EWCA Civ 365, [2002] 4 All ER 775, [2002] 1 WLR 2450.
Matadeen v Associated
Newspapers (17 March 2005, unreported).
Reynolds v Times
Newspapers Ltd [1999] 4 All ER 609, [2001] 2 AC 127, [1999] 3 WLR 1010, HL.
Various Ledward
Claimants v Kent and Medway Health Authority [2003] EWHC 2551 (QB), [2003]
All ER (D) 12 (Nov).
Weir v Secretary of
State for Transport [2005] EWHC 812 (Ch), [2005] All ER (D) 274 (Apr).
Cases referred to in skeleton arguments
Armstrong v Times
Newspapers Ltd [2004] EWHC 2928 (QB), [2004] All ER (D) 283 (Dec); rvsd
in part [2005] EWCA Civ 1007, [2005] All ER (D) 504 (Jul).
Berg v IML London Ltd
[2002] 4 All ER 87, [2002] 1 WLR 3271.
Cumpana v Romania
App no 33348/96 (10 June 2003, unreported), ECt HR.
Garratt v Saxby (Practice
Note) [2004] EWCA Civ 341, [2004] 1 WLR 2152.
Griffiths v Solutia
UK Ltd (formerly Monsanto Chemicals Ltd) [2001] EWCA Civ 736,
[2001] All ER (D) 196 (Apr).
John v MGN Ltd
[1996] 2 All ER 35, [1997] QB 586, [1996] 3 WLR 593, CA.
MacIntyre v Phillips [2002]
EWCA Civ 1087, [2003] EMLR 194.
McPhilemy v Times
Newspapers Ltd (No 2) [2001] EWCA Civ 933, [2001] 4 All ER 861,
[2002] 1 WLR 934.
MMR and MR Vaccine
Litigation (No 11), Re, Sayers v Smithkline Beecham plc
[2004] EWHC 1899 (QB), [2004] All ER (D) 607 (Jul).
Petrotrade Inc v
Texaco Ltd [2001] 4 All ER 853, [2002] 1 WLR 947, CA.
Petursson v Hutchison
[2004] EWHC 2609 (TCC).
Smart v East Cheshire
NHS Trust [2003] EWHC 2806 (QB), (2003) 80 BMLR 175.
Turcu v News Group
Newspapers Ltd [2005] EWHC 799 (QB), [2005] All ER (D) 34 (May).
Various Claimants v
TUI Ltd (11 August 2005, unreported).
155
Application
The British Broadcasting Corporation applied at pre-trial
review for a costs capping order in proceedings brought by the claimant, Marion
Henry, against the BBC claiming damages for libel. The facts are set out in the judgment.
Andrew Caldecott QC
and Catrin Evans (instructed by Stephen Harris, BBC Litigation Dept)
for the BBC.
Richard Rampton QC
and Jacob Dean (instructed by Carter-Ruck) for the claimant.
Cur adv
vult
11 November 2005.
The following judgment was delivered.
GRAY J.
THE QUESTION TO BE DECIDED
[1] This judgment is solely concerned with the
incidence of costs in this action between Ms Marion Henry who claims damages
for libel against the BBC in respect of a short news item broadcast as part of
a local news programme, ‘Points West’, on 12 May 2004. The trial of the action is due to start next
week.
[2] The particular question which I am asked
to decide is whether the BBC is entitled to a costs capping order. I heard argument on that and other ancillary
questions at the hearing of the pre-trial review which took place on 27 and 28
October 2005. At the conclusion of that
hearing I was invited by the parties to defer giving judgment. On 7 November, however, I was asked to
deliver judgment after all.
[3] The question of the BBC’s entitlement to a
cost-capping order arises in circumstances which may be summarised as follows:
the claimant’s lawyers act under a conditional fee agreement (CFA) and after
the event insurance (ATE) is in place.
The amount of the percentage uplift payable by the BBC in the event that
the claim succeeds (the success fee) has not been disclosed but it is thought
that it is likely to be 100%. It will be
necessary at a later stage in this judgment to examine the detailed wording of
the exclusion clauses in that policy.
In-house solicitors are conducting the litigation for the BBC. Both sides have instructed leaders and
juniors to conduct the trial.
[4] The allocation questionnaire filed by the
BBC on 10 October 2004 estimated its costs through to the end of trial at about
£290,000. The allocation questionnaire
of the claimant contained an estimate in the sum of £360,000 (assuming a
nine-day trial with leading and junior counsel). That figure excluded VAT, the success fee
provided for in the CFA and any claim in respect of the premium payable for the
ATE.
[5] Following a prolonged exchange of
correspondence to which I shall have to return, the BBC on 4 October 2005
issued an application for a costs cap.
It was subsequently revealed (on 21 October 2005 shortly before the
application for a costs cap was due to be heard) that the estimate of the
claimant’s costs had increased from £360,000 to £694,000, again exclusive of
VAT, success fee and any claim in respect of the ATE premium. It follows that, assuming the success fee to
be 100% of the base costs, the potential exposure of the BBC in respect of the
costs of the action, inclusive of VAT, is £1·6m.
156
[6] The BBC’s estimate of costs has also risen
substantially from the figure specified in the allocation questionnaire: the
estimate as at 24 October 2005 was £515,000.
I shall have to consider at a later stage in this judgment the factors
which brought about that increase.
THE BACKGROUND
[7] On or shortly before 12 May 2004 the
confidential report of an investigation carried out by Mr Michael Taylor (the
Taylor report) was issued. The subject
matter of the report was alleged waiting list mismanagement at Weston Area
Health NHS Trust (the trust). The
investigation followed allegations made by the trust’s former admissions
co-ordinator, Ms Michele Masson, that waiting lists had been mismanaged and
manipulated on the instruction of senior management in order to meet government
targets. Failure to meet those targets
might adversely affect the trust’s funding and its published rating as a
hospital. The publicly stated position
of the trust prior to Mr Taylor’s report had been that any mismanagement that
had occurred had been minor and was attributable to the unauthorised activities
of Ms Masson.
[8] The whole of the Taylor report was not
disclosed. A summary of it was issued to
the media. The summary stated that Ms
Masson’s principal allegations had been substantiated and that she and another
member of staff had received direct instructions from her ‘superiors’ and
‘senior managers’. According to the
summary ‘direct proof’ had not been found to identify who the relevant managers
were. The full report had in fact named
one person as having authorised manipulation.
[9] The broadcast of which the claimant
complains included as part of the coverage of the Taylor report an interview
with Ms Masson and an excerpt from a press conference held by her outside the
hospital. In the course of that press
conference Ms Masson said:
‘The first inquiry,
which was set up by the former Chief Executive in 2003, was undoubtedly a cover
up and clearly laid the blame for any irregularities at my foot despite
evidence to the contrary. As a result,
the senior management team including the Finance Director, Meredith Collins,
Linda Marvin and Marion Henry Justice of the Peace, were permitted to continue
in post …’
[10] The claimant, who was at the time the
facilities and administration manager at the trust, complains that those words
and other parts of the BBC broadcast (which I do not need to set out) are
defamatory of her in that they bear the following meanings:
‘4.1 The claimant was
guilty of systematically falsifying waiting list figures at Weston General
Hospital and had been found to be so by an independent inquiry report;
4.2 The claimant was
guilty of bullying and placing heavy-handed pressure on staff at Weston
Hospital under her management in order to perpetrate the waiting list fraud;
4.3 The claimant had
been complicit in a cover up of the waiting list fraud which allowed her to
continue in her post when she should have been dismissed; and
157
4.4 Patients are likely
to have suffered as a result of the claimant’s role in perpetrating the waiting
list fraud.’
The claimant seeks damages, including aggravated damages,
and an injunction.
[11] The substantive defences relied on by the
BBC are justification and qualified privilege.
As to the former, the meaning sought to be justified is:
‘(1) the claimant was
part of the senior management team [at the trust] which was involved in, and
pressured staff into, manipulating patient waiting lists in order to meet
targets; and
(2) the claimant was a
party to the cover-up of waiting list mismanagement and manipulation at [the
trust].’
The particulars of justification implicate Mr Meredith
Collins, the claimant and Ms Linda Marvin (all of whom had been named by Ms
Masson in the course of the press conference) in the mismanagement and
manipulation.
[12] The qualified privilege defence is an
amalgam of traditional common law privilege (duty/interest and reply to
attack), statutory privilege (fair and accurate report) and (I think) Reynolds
privilege (see Reynolds v Times Newspapers Ltd [1999] 4 All ER 609,
[2001] 2 AC 127. A detailed reply has
been served. A positive case is advanced
by the claimant that neither she nor Ms Marvin had any knowing involvement in
the manipulation. The reply does not
include any allegation of malice.
THE COSTS CAPPING REGIME
[13] As Dyson LJ observed in Leigh v
Michelin Tyre plc [2003] EWCA Civ 1766 at [1], [2004] 2 All ER 175 at [1],
[2004] 1 WLR 846: ‘One of the principal objects of the Woolf reforms was the
control of costs.’ Part of the control
mechanism for which the CPR provide is the exchange at the allocation stage of
costs estimates. The practice direction
supplementing CPR 26 provides that the allocation questionnaire should be in
Form N150, which requires estimates to be given of costs incurred by legal
representatives to date and of the overall costs. Paragraph 2.1(2)(a) of CPR 26 PD provides:
‘Attention is drawn to Section 6 of the Costs Practice Direction supplementing
Parts 43 to 48, which requires an estimate of costs to be filed and served when
an allocation questionnaire is filed …’
[14] Section 6 of the costs practice direction
current at the time when the present action was commenced defined an ‘estimate
of costs’ as an estimate of ‘base costs (including disbursements)’. It provides at para 6.1:
‘This section sets out
certain steps which parties and their legal representatives must take in order
to keep the parties informed about their potential liability in respect of
costs and in order to assist the court to decide what, if any, order to make
about costs and about case management.’
Paragraph 6.3 provides:
‘The court may at any
stage in a case order any party to file an estimate of base costs and to serve
copies of the estimate on all other parties.
The court may direct that the estimate be prepared in such a way as to
demonstrate the likely effects of giving or not giving a particular case
158
management direction
which the court is considering , for example a direction for a split trial or for
the trial of a preliminary issue. The
court may specify a time limit for filing and serving the estimate. However, if no time limit is specified the
estimate should be filed and served within 28 days of the date of the order.’
Also worthy of note is para 6.6 which is in these terms:
‘On an assessment of the
costs of a party the court may have regard to any estimate previously filed by
that party, or by any other party in the same proceedings. Such an estimate may be taken into account as
a factor among others, when assessing the reasonableness of any costs claimed.’
[15] Although understandably neither party was
aware of it at the time when argument took place on the present application, I
should for completeness mention amendments to the CPR which are to be found in
the latest update to the CPR published on 30 September 2005. The first amendment adds to the court’s
general powers of management in CPR 3.1 the additional power to ‘order any
party to file and serve an estimate of costs’.
This power appears to be exercisable at any stage of the
proceedings. The other amendment is an
addition to s 6 of the costs practice direction, a new para 6.5A:
‘(1) If there is a
difference of 20% or more between the base costs claimed by a receiving party
on detailed assessment and the costs shown in an estimate of costs filed by
that party, the receiving party must provide a statement of the reasons for the
difference in the bill of costs.
(2) If a paying
party—(a) claims that he reasonably relied on an estimate of costs filed by a
receiving party; or (b) wishes to rely upon the costs shown in the estimate in
order to dispute the reasonableness or proportionality of the costs claimed,
the paying party must serve a statement setting out his case in this regard in
his points of dispute.’
[16] In King v Telegraph Group Ltd
[2004] EWCA Civ 613, [2005] 1 WLR 2282 Brooke LJ reviewed the cost-capping
legislation. He said:
‘[83] It is, after all,
an important feature of the overriding objective that the court must be enabled
to save expense and deal with a case in ways which are proportionate to the
amount of money involved, the importance of the case, the complexity of the
issues and the financial position of each party (CPR r 1.1), and the parties
are required to help the court to further the overriding objective: CPR r 1.3’.
[17] Having pointed out that King v
Telegraph Group Ltd was the first occasion when the Court of Appeal had had
to consider matters relating to the use of CFAs in defamation actions, Brooke
LJ continued:
‘[99] What is in issue
in this case, however, is the appropriateness of arrangements whereby a
defendant publisher will be required to pay up to twice the reasonable and
proportionate costs of the claimant it he loses or concedes liability, and will
almost certainly have to bear his own costs … if he wins. The obvious unfairness of such a system is
bound to have the chilling effect on a newspaper exercising its right to
freedom of expression of which [the defendant’s solicitor] spoke in his witness
159
statement, and to lead
to the danger of self-imposed restraints on publication which he so much feared
…
[101] In my judgment the
only way to square the circle is to say that when making any costs-capping
order the court should prescribe a total amount of recoverable costs which will
be inclusive, so far as a CFA-funded party is concerned, of any additional
liability. It cannot be just to submit
defendants in these cases, where their right to freedom of expression is at
stake, to a costs regime where the costs they have will have to pay if they
lose are neither reasonable nor proportionate and they have no reasonable
prospect of recovering their reasonable and proportionate costs if they win.
[102] If this means, now
that the amount at stake in defamation cases has been so greatly reduced, that
it will not be open to a CFA-assisted claimant to receive the benefit of an
advocate instructed at anything more than a modest fee or to receive the help
of a litigation partner in a very expensive firm who is not willing to curtail
his fees, then his/her fate will be no different from that of a conventional
legally aided litigant in modern times.
It is rare these days for such a litigant to be able to secure the
services of leading counsel unless the size of the likely award of compensation
justifies such an outlay, and defamation litigation does not open the door to
awards on that scale today. Similarly,
if the introduction of this novel costs-capping regime means that a claimant’s
lawyers may be reluctant to accept instructions on a CFA basis unless they
assess the chances of success as significantly greater than evens (so that the
size of the success fee will be to that extent reduced), this in my judgment
will be a small price to pay in contrast to the price that is potentially to be
paid if the present state of affairs is allowed to continue …
[104] In this judgment I
am not concerned to give more than general guidance as to the procedure that
should be followed in future cases to mitigate the evils of which [counsel for
the defendant] and his clients were right to complain. The details of what may be appropriate to
order in individual cases will have to be worked out on a case by case basis. Nor am I willing to accept [counsel for the
defendant’s] invitation that we should make a specific order disallowing costs
in relation to any of the acts of extravagance of which he made complaint. This is not the subject matter of this
appeal. It will be sufficient only to
say that the claimant’s lawyers appear to have advanced their client’s claim
from time to time in a manner that is wholly incompatible with the philosophy
if the Civil Procedure Rules, and that I would expect a costs judge to take an
axe to certain elements of their charges if the matter ever proceeds to an
assessment. If the action goes to trial,
the trial judge should express his views on matters of this kind and direct
that they be transcribed for the benefit of the costs judge, since the trial
judge will be much better able than the costs judge to identify those parts of
a case in which costs have been wastefully or extravagantly incurred.
[105] There are three
main weapons available to a party who is concerned about extravagant conduct by
the other side, or the risk of such extravagance. The first is a prospective costs capping
order of the type I have discussed in this judgment. The second is a retrospective assessment of
costs conducted toughly in accordance with CPR principles. The third
160
is a wasted costs order
against the other party’s lawyers, but this is not the time or place to discuss
the occasions when that would be the appropriate weapon.’
[18] Lord Hoffman in Campbell v MGN Ltd
(No 2) [2005] UKHL 61, [2005] 4 All ER 793, [2005] 1 WLR 3394 indorsed
what Brooke LJ had said in King’s case.
He commented that neither capping costs at an early stage nor assessing
them later deals with the threat of having to pay the claimant’s costs at a
level which is by definition up to twice the amount which would be
proportionate and reasonable. He said of
the problems which defamation litigation with CFAs is causing:
‘[31] The blackmailing
effect of such litigation appears to arise from two factors. First, the use of CFAs by impecunious
claimants who do not take out ATE insurance.
That, of course, is not a feature of the present case. If MGN are right about Ms Campbell’s means,
she would have been able to pay their costs if she had lost. The second factor is the conduct of the case
by the claimant’s solicitors in a way which not only runs up substantial costs
but requires the defendants to do so as well.
Faced with a free-spending claimant’s solicitor and being at risk not
only as to liability but also as to twice the claimant’s costs, the defendant
is faced with an arms race which makes it particularly unfair for the claimant
afterwards to justify his conduct of the litigation on the ground that the
defendant’s own costs were equally high.’
THE HISTORY OF THE LITIGATION
[19] The history of this case provides a vivid
illustration of the problems to which CFA-financed litigation can give
rise. In the hope that it may give some
guidance for future cases, I will attempt to summarise that history, although
not, I hope, at excessive length.
[20] As I have said, Carter-Ruck (CR), the
claimant’s solicitors, promptly and properly informed the BBC on 18 June 2004
that they were acting on a CFA. That
same day CR obtained ATE insurance. On
18 June 2004 the claimant entered into an insurance agreement with Temple Legal
Protection Ltd. The limit of indemnity
was £100,000. Mr Andrew Caldecott QC for
the BBC draws attention to what he submits are the highly significant exclusion
cll 2, 10 and 11 in the policy. Clause 2 provides that the insurer shall not be
liable for disbursements or opponent’s (ie defendant’s) costs if the legal
action is lost, discontinued or abandoned ‘as a result of the dishonesty of the
insured’. Clause 10 exempts the insurer from liability for such disbursements
and costs if the insured or the appointed legal adviser has given ‘any
fraudulent, false or misleading information in connection with the legal
action’. Clause 11 provides a similar
exemption if the insured or the appointed legal adviser has ‘failed to provide
any material information in connection with the legal action’.
[21] The significance of provisions such as
these is obvious in a case where one of the defences relied on is
justification: if the defence of justification, involving as it does
allegations of deception and cover-up on the part of the claimant, were to succeed,
it is, to put it no higher, very likely that the insurer would be able to
disclaim liability for the costs incurred by the ‘opponent’, ie the BBC.
161
[22] In answer to a request from the BBC’s
litigation department for information as to the level of cover and for a copy
of extracts of the policy, CR replied that their client was under no obligation
to provide copies of the insurance documentation which ‘is clearly
privileged’. CR’s letter did not specify
the amount of cover. Mr Caldecott was
highly critical of that response and, in my judgment, rightly so.
[23] Both the amount of cover and the
existence of material exclusions in the policy are of obvious relevance to the
opposite party, who must be in a position to make informed choices as to the
conduct of the litigation. If the
discrepancy between the amount of cover and the updated estimate of costs up to
and including trial had been made known promptly to the BBC (as they could and
should have been), the present application could have been mounted far
sooner. It is said on behalf of the
claimant that exclusions such as those contained in the Temple policy are
commonplace in this field. If so, that
is a further reason for candour on the part of the insured’s solicitors about
the possible limits on the ability of the opposite party to recover under the
policy. It is also said on behalf of the
claimant that insurers such as Temple would be unlikely to seek to avoid
liability by reference to the exclusion clauses summarised above. I see no reason why this or any other
defendant should proceed on any such assumption particularly in a high cost
case.
[24] As for the claim to privilege made in
CR’s letter of 14 July 2005, it was utterly misconceived. As the litigation department pointed out in
its letter of 19 September 2005, the BBC must be entitled to see the provision
of the policy in order to assess its financial exposure in the action and to
consider whether to apply for a costs capping order. The letter stressed the urgency of the
request. Despite that and despite a
reminder letter having been written to CR on 23 September it was not until
after the BBC on 4 October issued an application seeking disclosure of the
policy and a cost cap that CR finally disclosed the policy. By this time the trial was only six weeks
away.
[25] It is difficult to understand how CR can
have thought that the claim to privilege was well founded. This is particularly so in the light of what
had happened in another case, Al-Koronky v Time Life Entertainments Group Ltd
[2005] EWHC 1688 (QB). CR also acted for
the claimant in that case with ATE cover on a CFA. In that case CR refused, at least initially,
to disclose the policy although not on grounds of privilege. An application for security for costs having
been made in that case against the claimant, CR acknowledged that the ATE
insurance policy in that case was likely to be of no value to the defendant as
the plea of justification (the only defence relied on) required proof of
dishonesty in order to succeed.
[26] The significance of Al-Koronky’s
case for present purposes, as it appears to me, is twofold: firstly that no
claim for privilege was made in that case.
It is difficult to understand how such a claim came to be made in the
present case. One would expect that the
question of privilege of ATE policies would have been carefully considered
within a specialist firm like CR which regularly acts for clients on CFAs. Secondly, it must have been apparent to
anyone reading the report of that case that, in many cases where a defence of
justification is relied on, the policy may be worthless to the defendant
because the insurer will be entitled to rely on the exclusions. Mr Richard Rampton QC for the claimant
dismissed that proposition as simplistic but, at least in the circumstances of
the present case, it seems real enough to me.
In any event it
162
is to be hoped that in future the ATE policy will as
a matter of course be disclosed to the opposite party.
[27] By letter dated 12 July 2005 the BBC had
asked CR for a current estimate of the claimant’s projected costs. That request was refused by CR on the ground
that such information was not needed in order to enable the BBC to provide an
accurate estimate of its costs.
[28] It is clear from the witness statement of
Mrs Jones of the BBC litigation department that in early October she was
assuming that CR’s costs would broadly reflect the estimate of £360,000 in the
allocation questionnaire. However,
shortly before the cost capping application by the BBC was due to be heard the
claimant served a revised costs estimate in the sum of £694,000 exclusive of
VAT, success fee and the premium for the ATE cover. This was the first indication from CR that
there had been any increase in the estimate provided as long ago as 21 October
2004. That revised estimate revealed to
the BBC for the first time the true extent of its financial exposure in the
action (see [5], above). It also
revealed how woefully inadequate was the cover provided by the Temple policy,
namely £100,000. The BBC had understood
that the amount of cover originally designated would be ‘stepped up’ as the
trial approached.
[29] It is fair to say that there had been
delay on the part of the BBC in providing an estimate of its projected costs,
despite a request from CR on 17 June 2005 and a chaser on 14 July 2005. The BBC had indicated earlier by letter dated
9 March 2005 that its costs to trial would be significantly more than
previously estimated. Even so, the delay
on the part of the BBC in providing an estimate is regrettable. It is implicit in the power of the court by
virtue of the provisions summarised at [14], above to order costs estimates to
be provided that both sides should keep each other informed of their respective
up-to-date costs positions. I was told
in the course of the hearing that it is technically possible to produce an
accurate estimate within a fairly short time. Where a party prevaricates the
remedy lies in making a prompt application to court for an order. The present case shows what may happen if
that is not done.
[30] On 25 October 2005 the BBC provided a
revised estimate of its costs up to and including trial in the sum of £515,000
(which figure includes £37,000 in respect of costs payable to a third party
solicitors in connection with the obtaining of evidence from their
clients). Mr Rampton on behalf of the
claimant was quick to point out that this figure is not far short of the
claimant’s revised estimate of £690,000.
Moreover he points out that the BBC is using in-house solicitors. I think comparisons of this kind between the
respective estimates can be misleading.
As a general rule the costs incurred by a defendant advancing a
substantial plea of justification are likely to be significantly greater than
the costs of the claimant. I accept that
the BBC’s costs would have been significantly reduced if CR on behalf of the
claimant had felt able to make the admissions sought in a notice to admit dated
7 March 2005 and which, I accept, was served by the BBC with the laudable intention
of reducing costs. I agree that costs
are saved by using in-house solicitors.
On the other hand, in-house solicitors tend to consult counsel more than
specialist firms like CR.
163
THE PREDICAMENT OF THE BBC
[31] As will already be apparent, the predicament
of the BBC at the time when this application was argued was an unenviable
one. If the case goes to trial, the
BBC’s own costs will be £515,000. If the
BBC wins at trial, there is reason to doubt if it will recover under the Temple
policy. In any case the BBC will not be
entitled to recover more than 20% of its costs.
The combined assets of the claimant and her husband come to about
£235,000, most of which consists in the equity in the matrimonial home. The claimant’s share is therefore only £117,000. Conversely if the claimant wins at trial the
BBC will be faced with a bill of the claimant’s costs which, inclusive of
uplift, will total in the region of £1·6m.
That figure is of course subject to assessment. On the other hand the BBC will also have to
pay its own costs.
THE ARGUMENT FOR A COST CAP
[32] It is in those circumstances that the BBC
now applies for an order that the claimant’s costs be capped. Mr Caldecott says that the playing field is
not level as between the parties. He
points out that the case raises an issue of considerable public interest. He argues that wherever a media (or indeed
any other) defendant in a libel action is compelled on financial grounds to
abandon any attempt to defend it, there is a serious inhibition on freedom of
expression. This was expressly
recognised by the House of Lords in Campbell’s case (see the speech of
Lord Hoffman at [19]).
[33] Mr Caldecott acknowledges that the
application for a costs cap is made at a very late stage: the trial is now only
days away. He submits that the delay in
applying has arisen through no fault of the BBC; if this litigation had been
conducted on behalf of the claimant with the candour and open-handedness
required under the CPR, the application could and would have been made much
sooner. Mr Caldecott accepts with regret
that it is not open to him now to seek a retrospective costs cap. He urges the court to adopt the approach
recommended in King’s case to prescribe ‘a total amount of recoverable
costs which will be inclusive, so far as [the] CFA-funded party is concerned,
of any additional liability’ from now until the conclusion of the trial. He contends that the cap should extend to
brief fees and to the hourly rates charge by CR. Alternatively he suggests that the claimant’s
costs should be capped at the amount of the present estimate inclusive of the
uplift. In return Mr Caldecott accepts
that the costs of the BBC should be capped.
[34] In response Mr Rampton on behalf of the
claimant rejects the criticisms made of the conduct of the case by CR. In particular he rejects the charge that any
deception has taken place either in relation to the amount of ATE insurance
cover or as to the terms of the policy.
The witness statement of Mr Tudor, the partner in CR who has conduct of
this case, contains a detailed refutation of the claim that CR misrepresented
the position to the BBC. Mr Tudor argues
that the correspondence cannot sensibly be read as indicating that the claimant
had in place insurance cover up to the amount of the BBC’s estimate, still less
up to the ‘significantly higher’ revised figure which the BBC perversely
refused to disclose (see [29], above).
Mr Tudor’s evidence is that there is nothing out of the ordinary about
the exclusions in the Temple policy (see [20], above).
[35] The principal grounds on which Mr Rampton
opposes the application for a costs cap are, firstly, that the application
comes far too late. It would, he
submits, be unfair to cap costs now, given that a major part of the rationale
for
164
the costs capping regime is that the capped party can
plan ahead and allocate resources appropriately in the light of the cap (see
Lownds v Home Office [2002] EWCA Civ 365 at [23], [2002] 4 All ER 775 at
[23], [2002] 1 WLR 2450). Secondly, Mr
Rampton says that the evidence does not justify the conclusion that there has
been extravagance on the part of the claimant’s legal advisers resulting in the
‘arms race’ which Lord Hoffman deplored in Campbell’s case (see [18],
above). Thirdly, Mr Rampton argues that
it would be impracticable for me, sitting alone without the benefit of
assistance and advice from a costs judge, to embark on the task of determining
the right figure for the cap.
CONCLUSION
[36] I should say at the outset that this case
strikes me as a prime candidate for a costs capping order. Where costs are running at the levels which I
have indicated earlier in this judgment and a CFA with a substantial success
fee is in place, the court is likely to be ready to intervene. The court cannot, however, intervene of its
own motion. As is clear from the costs
practice direction quoted at [14] and [15], above it is up to the parties to
keep themselves informed of their opponents’ estimated costs, if necessary by
making an application to the court for an order that an estimate be provided.
[37] Unfortunately no such application was
made in the present case. I have set out
the chronology at some length at [20]–[30], above. It will be apparent from that chronology how
it came about that it was not until October 2005 that the BBC was informed that
the estimate of the claimant’s costs had risen from £360,000 to £690,000. The BBC could and should have been informed
by CR far sooner about the escalating costs, especially in view of the
existence of a CFA which might well double the costs exposure of the BBC. It is to be hoped that in future, where a
litigant encounters difficulty in obtaining information about his opponent’s
costs position, application will be made pursuant to para 6 of the costs
practice direction for an order for an estimate.
[38] But in the present case that was only
part of the problem: the BBC was kept in the dark about the terms of the ATE
insurance cover. That should not have
happened: the BBC had a legitimate interest in knowing the extent of the
protection provided under the policy.
Whether or not the exclusion clauses in the Temple policy are
commonplace, the BBC had a right to know what they were.
[39] I have every sympathy for the
predicament, described at [31], above, in which the BBC, through no fault of
its own, now finds itself. It does not,
however, follow that it would be right for me at this stage in the proceedings
to impose a costs cap. Mr Caldecott has,
as I have said, accepted that any cap would have to be prospective. He is in my view right to adopt that
stance. There is ample authority that
cost capping orders should invariably operate prospectively and not
retrospectively (see King v Telegraph Group Ltd [2004] EWCA Civ 613 at
[80], [2005] 1 WLR 2282 at [80] per Brooke LJ; Weir v Secretary of
State for Transport [2005] EWHC 812 (Ch) at [29], [2005] All ER (D) 274
(Apr) at [29] per Lindsay J). I see
considerable force in the point made by Mr Rampton that the imposition of a
costs cap so close to trial would in effect penalise the claimant, or perhaps
more accurately her legal advisers, when, as has often been said, the purpose
of a capping order is to enable the capped party to plan ahead the appropriate
level of expenditure to bring the case to
165
trial at a cost which is in line with the amount of
the cap. It would in my opinion be wrong
to use the cost-capping jurisdiction in a way which would deny the claimant the
benefit of the CFA to which she is statutorily entitled.
[40] I would therefore with some reluctance
decline to make a cost-capping order on the ground that the application is made
too late. But there is a further reason
why I would not do so. I do not feel
that I am qualified to determine without assistance from a costs judge the
amount of the brief fees, the charging rates and how much work is reasonable
and proportionate between now and the end of the trial. Such an exercise is more suitable for a costs
judge or at least by a judge like myself sitting with a costs judge (see
Matadeen v Associated Newspapers (17 March 2005, unreported) (Master Eyre);
Various Ledward Claimants v Kent and Medway Health Authority [2003] EWHC
2551 (QB), [2003] All ER (D) 12 (Nov) and AB v Leeds Teaching Hospitals NHS
Trust, In the matter of the Nationwide Organ Group Litigation [2003] EWHC
1034 (QB), [2003] 3 Costs LR 405). Such
discussion as took place during the course of the hearing about figures
satisfied me of the impracticability of the exercise which I was being asked to
perform.
[41] If I say no more about figures, it is
because I bear in mind there may come a time when the costs of one party or the
other will be subject to detailed assessment.
Application refused.
Dilys
Tausz Barrister.
166
[2006] 1 All ER 167
Sisu Capital Fund Ltd and others v Tucker and others
[2005]
EWHC 2321 (Ch)
CIVIL PROCEDURE
CHANCERY DIVISION
WARREN
J
12,
28 OCTOBER 2005
Costs – Assessment – Detailed assessment – Costs
of officeholder – Costs of time spent on matters not ordinary recoverable by
ordinary litigant – Whether costs of such time recoverable by officeholder.
Following judgment in proceedings brought,
unsuccessfully, by the applicant companies against the respondent liquidators
and administrators (the officeholders), who were members of a firm of
accountants, a point of principle arose in relation to the detailed assessment
of costs. The costs of the officeholders
themselves, and of their colleagues at the accountancy firm, in dealing with
the proceedings (the firm’s costs) related to a variety of tasks, some of which
might have called for special expertise.
They also related to time spent on matters which, if undertaken by a
litigant who instructed lawyers, would not ordinarily have given rise to a
liability to a paying party under a costs order, such as time spent in reviewing
documents for disclosure, assisting in the preparation of witness statements
and in attending court hearings. The
officeholders submitted that the entirety of the firm’s costs should be
recoverable (subject to detailed assessment).
They considered that the indemnity intended to be provided by an order
for costs was broad enough to encompass a litigant’s expenditure of time,
subject to the qualification that the court had to be able to quantify the
amount of money which the expenditure of time gave rise to, which would give
rise to no difficulty where professionals were involved. They contended that the reasoning by which a
solicitor, acting as a litigant in person, could recover costs, was equally
applicable to other professionals who acted in person.
Held – The principle that a litigant in person
who was a solicitor could recover costs as if he had employed a solicitor,
except in respect of items which the fact of his acting directly rendered
unnecessary, was restricted in its operation to solicitors and did not extend
to other professionals. A non-solicitor
litigant in person, even if a professional, could not recover in respect of his
time spent, other than in respect of time spent on matters within his own
professional expertise and requiring the attention of an expert. The position of an officeholder was no
different. Even if in the fulfilment of
his duties as an officeholder he had to bring or defend litigation that did not
mean that it was part of his profession to conduct litigation in the way that
it was part of the profession of a solicitor to do so. In the instant case it was therefore only
that part of the firm’s costs which related to in-house expert services carried
out by experts doing work which was such as to require the exercise of that
particular expertise which could be brought into account on the detailed
assessment. Since there was no
difference between time spent by an employee of the firm and time spent by the
officeholders personally, time spent by the officeholders personally on truly
expert matters would attract
167
the same costs treatment as time spent by employees
(see [34], [35], [38]–[40], [42], [43], [48], below).
London Scottish Benefit Society v Chorley (1884)
12 QBD 452, DC, [1881–5] All ER Rep 1111, CA, considered.
Re Nossen’s Patent [1969] 1 All ER 775
applied.
Admiral Management Services Ltd v Para-Protect
Europe Ltd [2003] 2 All ER 1017 followed.
Amec Process and Energy Ltd v Stork Engineers
& Contractors BV (No 3) [2002] All ER (D) 48 (Apr) not followed.
Notes
For costs of solicitor litigant in general, see 44(1) Halsbury’s
Laws (4th edn reissue) para 176.
Cases referred to in judgment
Admiral Management
Services Ltd v Para-Protect Europe Ltd [2002] EWHC 233 (Ch), [2003] 2 All
ER 1017, [2002] 1 WLR 2722.
Alexander (Jonathan)
Ltd v Proctor [1996] 2 All ER 334, [1996] 1 WLR 518, CA.
Amec Process and
Energy Ltd v Stork Engineers & Contractors BV (No 3) [2002] All
ER (D) 48 (Apr).
Andrews, Re [1999]
2 All ER 751, [1999] 1 WLR 1236, CA.
Buckland v Watts [1969]
2 All ER 985, [1970] 1 QB 27, [1969] 3 WLR 92, CA.
Elgindata Ltd (No
2), Re [1993] 1 All ER 232, [1992] 1 WLR 1207, CA.
London Scottish
Benefit Society v Chorley (1884) 12 QBD 452, DC; affd (1884) 13 QBD
872, [1881–5] All ER Rep 1111, CA.
Malkinson v Trim [2002]
EWCA Civ 1273, [2003] 2 All ER 356, [2003] 1 WLR 463.
Nossen’s Patent, Re [1969]
1 All ER 775, [1969] 1 WLR 683, ChD.
Phonographic
Performance Ltd v AEI Rediffusion Music Ltd [1999] 2 All ER 299, [1999] 1
WLR 1507, CA.
R (on the
application of Factortame) Ltd v Secretary of State for Transport,
Environment and the Regions (No 2) [2002] EWCA Civ 932, [2002] 4 All
ER 97, [2003] QB 381, [2002] 3 WLR 1104.
Richards &
Wallington (Plant Hire) Ltd v Monk & Co Ltd (1984) Costs
LR (Core Vol) 79.
Application
Sisu Capital Fund Ltd, Sisu Capital Fund Ltd II Ltd, Sisu
Capital Fund Limited Partnership, Avro Master Fund Limited Partnership,
Provident Life and Accident Insurance Company, The Paul Revere Life Insurance
Company, and Unum Life Insurance Company of America (the applicants) and James
Tucker and Jeremy Spratt (the joint liquidators of Energy Holdings (No 3) Ltd
(in liquidation) and Philip Wallace and Finbarr O’Connell (the joint
administrators of Energy Group Overseas BV (in administration)) (the officeholders)
applied to the court to decide a point of principle arising in the detailed
assessment of costs following the judgment of Warren J on 9 September ([2005]
EWHC 2170 (Ch), [2005] All ER (D) 200 (Oct)) in proceedings between the
applicants and the officeholders. The
facts are set out in the judgment.
168
Stephen Davies QC,
Philip Gillyon, David Wolfson and Edward Davies (instructed
by Bingham McCutchen) for the applicants.
Michael Crystal QC
and Mark Arnold (instructed by Allen & Overy) for Mr Tucker
and Mr Wallace.
Michael Briggs QC,
John Machell, David Drake and Ruth Jordan (instructed by
Fladgate Fielder) for Mr Spratt and Mr O’Connell.
Cur adv
vult
28 October 2005.
The following judgment was delivered.
WARREN J.
INTRODUCTION
[1] Following my judgment handed down (subject
to corrections) on 9 September 2005 (see [2005] EWHC 2170 (Ch), [2005] All ER
(D) 200 (Oct)), the parties now ask me to decide a point of principle which
will arise in the detailed assessment of costs.
[2] A great deal of time was spent by the
officeholders and their colleagues at KPMG in dealing with the
proceedings. As between the
officeholders and the estates, the officeholders are entitled to receive
payment in respect of the time spent by KPMG subject to the usual constraints
on charging and the payment of fees and disbursements which apply generally
under the insolvency rules. The
officeholders themselves are entitled to recover payment from the estates for
their time as remuneration. Although
KPMG is an LLP, and thus has a legal personality separate from those of the
partners individually, it is accepted by the officeholders that payment in
respect of the work done by their colleagues at KPMG also falls to be recovered
as remuneration and not as a disbursement.
I am asked to proceed on that basis and to ignore the possibility that
KPMG might have been able to bill the officeholders for the work undertaken by
KPMG’s employees, the payment of such bills being recoverable from the estates
as proper disbursements. I shall, like counsel,
refer to the totality of all these costs, both of the officeholders themselves
and of their colleagues at KPMG as ‘the KPMG costs’.
[3] The KPMG costs relate to a variety of
tasks some of which may have called for special expertise, for instance, the
financial modelling, or at least some aspects of it, undertaken during the
course of the proceedings. But the KPMG
costs relate also to time spent on some matters which, if undertaken by a
litigant (or his employees) who instructs solicitors and counsel, would not
ordinarily give rise to a liability to a paying party under a costs order, for
instance, time spent in reviewing documents for disclosure, in assisting in the
preparation of witness statements and in attending court hearings.
[4] Mr Briggs QC, for Mr Spratt and Mr
O’Connell (whose submissions are adopted by Mr Crystal QC, for Mr Tucker and Mr
Wallace) submits that the entirety of the KPMG costs should, subject to
detailed assessment, be recoverable. In
summary, he says that the term ‘costs’, and the indemnity intended to be
provided by an order for costs, is broad enough to encompass a litigant’s
expenditure of time just as much as his expenditure of money subject to the
qualification that the court must be able to quantify the amount of money which
the expenditure of time gives rise to.
In a case such as the present where the litigants (the officeholders)
are professionals and where the insolvency code itself provides controls on
remuneration, quantification gives rise to no problems
169
so that the costs should be allowed. Essentially, it is submitted that time is
money (whether the time is that of the officeholders themselves or of KPMG
personnel) and that the cost of that time can be quantified: the officeholders
can and should therefore be indemnified for that cost.
[5] Mr Davies QC, for the applicants, says, in
summary, that there is no authority for such a novel approach and that it would
have far-reaching consequences pushing up yet further the cost of litigation,
although he does accept that there is an exception in relation to in-house
expert advice the cost of which may be recovered.
[6] Before addressing the arguments, I propose
to consider the authorities which have been cited. In doing so, I bear in mind that many of them
pre-date the introduction of the CPR and note at this point that I will need to
deal with rival submissions about the difference, if any, in the meaning of
‘costs’ in the RSC on the one hand and the CPR on the other.
[7] The London Scottish Benefit Society v
Chorley was a case against a litigant in person who was himself a
solicitor. He succeeded in his
defence. It was held, both in the
Divisional Court ((1884) 12 QBD 452) and the Court of Appeal ((1884) 13 QBD
872, [1881–5] All ER Rep 1111), that he was entitled on taxation to the same
costs as if he had employed a solicitor, except in respect of items which the
fact of his acting rendered unnecessary.
Since the litigant was a solicitor, it is not surprising that the question
of recovery of costs was addressed in the context of the costs which would have
had to be incurred if the solicitor had not acted for himself but had
instructed another solicitor; and in that context, it is clear that, subject to
proper assessment, such costs would have been recoverable.
[8] Since Mr Briggs relies heavily on this
case, I should deal with it in some detail.
Three passages from the judgments of Denman, Manisty and Watkin Williams
JJ, in the Divisional Court are of relevance:
‘[Denman J] … treating
the costs as being in a reasonable sense of the word equivalent to an
indemnity, I am not aware of any principle which ought to prevent a successful
party who is a solicitor, and who does solicitor’s work, from being indemnified
not merely for the time he must necessarily expend as a witness in his own
case, but also for the pains, trouble, and skill which he has to incur and to
exercise in order to bring it to a successful conclusion … The solicitor’s time
is valuable: he applies his skill to a suit or action in which he is obliged to
spend his time and exercise his skill in consequence of the wrongful act of his
opponent; and therefore it is not an unreasonable view that the word “costs,”
in the sense of an “indemnity,” should be held fairly to include a reasonable
professional remuneration for that work which, if he did not do it himself,
would have had to be done by another solicitor and paid for by his unsuccessful
opponent.’ (See (1884) 12 QBD 452 at 455.)
‘[Manisty J] It is said
that because he [the solicitor] is a party to the action, no costs, except
costs properly so called, that is, money out of pocket, ought to be allowed
him; and that there is no difference between a party who is a solicitor and one
who is not a solicitor. It seems to me
that the observation may be answered at once, and conclusively answered. The reason why costs are allowed to a
solicitor being a party, and not to another person who is not a solicitor, is
simply this, that the one is a solicitor and the other is not. For instance, what a strange thing it would
be that a person who is not a solicitor should be allowed solicitors’ charges …
Time is money to a solicitor; and why should he not be as much entitled to his
proper costs, if he affords the
170
time and skill which he
brings to bear upon the business where he is a party to the action as he is
where he is not a party?’ (See (1884) 12 QBD 452 at 456–457.)
‘[Watkin Williams J] It
seems to me that the word “costs,” though a technical term now, may very well
have been used to include, not merely money expended, but any real expenditure,
whether of time or money, incurred by the party in defending himself against an
unjust claim. If that expenditure takes
the form of employing skilled persons to do the work necessary to insure
success, this would fall within the expression “costs” in its primary sense:
but, if the defendant be himself a person of skill, and devotes that skill and
valuable time and legal knowledge to the doing of that for which he would
otherwise have been obliged to employ and pay some one else, it seems to me
both upon principle and on the ground of expediency that time so spent, and
skill so devoted, and professional knowledge so applied, should be compensated
for under the name of “costs.”’ (See
(1884) 12 QBD 452 at 459–460.)
[9] Then, in the Court of Appeal, Brett MR and
Bowen LJ said:
‘[Brett MR] … It was
contended for the plaintiffs that there is no difference as regards the right
to costs between a solicitor and an ordinary person; and for the defendants it
was contended that the costs of a solicitor, who is party to a suit, ought
substantially to be taxed as if he had been acting for a different person. I think neither contention correct. I cannot think that any privilege of a
solicitor exists. I am wholly unable to
agree to any argument standing upon that footing. I should have thought that a person
wrongfully brought into litigation ought to be indemnified against the expenses
to which he is unjustly put; but there cannot be a perfect indemnity, because
it is impossible to determine how much of the costs is incurred through his own
over-anxiety. When an ordinary party to
a suit appears for himself, he is not indemnified for loss of time; but when he
appears by solicitor, he is entitled to recover for the time expended by the
solicitor in the conduct of the suit.
When an ordinary litigant appears in person, he is paid only for costs
out of pocket. He cannot himself take
every step, and very often employs a solicitor to assist him: the remuneration
to the solicitor is money paid out of pocket.
He has to pay the fees of the court, that is money paid out of pocket;
but for loss of time the law will not indemnify him. When, however, we come to the case of a
solicitor, the question must be viewed from a different aspect. There are things which a solicitor can do for
himself, but also he can employ another solicitor to do them for him; and it
would be unadvisable to lay down that he shall not be entitled to ordinary
costs if he appears in person, because in that case he would always employ
another solicitor. If a solicitor does
by his clerk that which might be done by another solicitor, it is a loss of
money, and not simply a loss of time, because it is work done by a person who
is paid for doing it. It is true,
however, to say that the costs of a solicitor appearing in person must be taxed
differently from those of an ordinary litigant appearing by a solicitor. The unsuccessful adversary of a solicitor
appearing in person cannot be charged for what does not exist, he cannot be
charged for the solicitor consulting himself, or instructing himself, or
attending upon himself. The true rule
seems to be that when a solicitor brings or defends an action in person, he is
entitled to the same costs as an
171
ordinary litigant appearing
by a solicitor, subject to this restriction, that no costs which are really
unnecessary can be recovered.’ (See
(1884) 13 QBD 872 at 875–876, [1881–5] All ER Rep 1111 at 1112–1113.)
‘[Bowen LJ] … [Lord
Coke’s] meaning seems to be that only legal costs which the Court can measure
are to be allowed, and that such legal costs are to be treated as expenses
necessarily arising from the litigation and necessarily caused by the course
which it takes. Professional skill and
labour are recognised and can be measured by the law; private expenditure of
labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the
nervousness of the individual. Professional
skill, when it is bestowed, is accordingly allowed for in taxing a bill of
costs; and it would be absurd to permit a solicitor to charge for the same work
when it is done by another solicitor, and not to permit him to charge for it
when it is done by his own clerk. The
question before us does not depend on the privileges of a solicitor. My judgment is the same as that of the Master
of the Rolls; the costs claimed, subject to the exceptions which have been
mentioned, ought to be allowed, because there is an expenditure of professional
skill and labour.’ (See (1884) 13 QBD 872
at 877, [1881–5] All ER Rep 1111 at 1113.)
[10] The principle which this case is taken as
establishing is that set out in the headnote viz that a litigant in person who
is a solicitor can recover costs as if he had employed a solicitor, except in
respect of items which the fact of his acting directly renders unnecessary: see
most recently the decision of the Court of Appeal in Malkinson v Trim [2002]
EWCA Civ 1273 at [9], [2003] 2 All ER 356 at [9], [2003] 1 WLR 463. It also lends support to the proposition that
a litigant in person who has some other professional skill can recover in
respect of the time spent exercising that skill (a result consistent with the
next case I consider, Re Nossen’s Patent [1969] 1 All ER 775, [1969] 1
WLR 683).
[11] The next case in time is Re Nossen’s
Patent (Lloyd-Jacob J sitting with assessors). This concerned costs incurred in-house rather
than the costs of a litigant in
person. In defending an
application for patent infringement (an application which was dismissed on the
applicant failing to provide security for costs), the respondent, the United
Kingdom Atomic Energy Authority, incurred expenditure on research and
experimentation. Part of that work was
carried out by experts in the Authority’s employ using the Authority’s
materials on its own premises. In considering that expenditure, Lloyd-Jacob J
stated that the established practice of the courts was to disallow any sums
claimed in respect of the time spent by the litigant personally in the course
of instructing his solicitors but that, in the case of litigation by a
corporation, that practice had not been strictly applied, it being recognised
that, if expert assistance is properly required, it may well occur that the
corporation’s own specialist employees may be the most suitable or convenient
experts to employ and that the direct costs incurred, but not a contribution to
overheads, should, in principle, be recoverable. He expressed his conclusion this way:
‘when it is appropriate
that a corporate litigant should recover, on a party and party basis, a sum in
respect of expert services of this character performed by its own staff, the
amount must be restricted to a reasonable sum for the actual and direct costs
of the work undertaken.’ (See [1969] 1
All ER 775 at 779, [1969] 1 WLR 683 at 644.)
172
[12] Like Stanley Burnton J in Admiral
Management Services Ltd v Para-Protect Europe Ltd [2002] EWHC 233 (Ch) at
[28], [2003] 2 All ER 1017 at [28], [2002] 1 WLR 2722 (see [18]–[22], below), I
find it curious that a more liberal principle should, apparently, be applied to
a corporation than to a partnership or an individual. In the present case, KPMG is an LLP and I
would be inclined to treat it as a corporation for the purposes of the Re
Nossen’s Patent exception. In any
event, Mr Davies accepts, as I understand his position, that the KPMG costs
are, in principle, recoverable to the extent that the costs relate to what can
properly be described as the exercise of expert skills.
[13] In Buckland v Watts [1969] 2 All
ER 985, [1970] 1 QB 27, it was held that a litigant in person (who had claimed
for his time in looking up the law) but who was not a solicitor was not
entitled to claim costs in respect of the time spent preparing his case, but
only his out-of-pocket expenses.
Danckwerts LJ (and John Stephenson J who agreed with him) adopted a
conventional approach according to which it is only a solicitor who, as a
litigant in person, is able to recover any costs in respect of the work which
would ordinarily be done by a solicitor.
Since the work in relation to which the litigant claimed costs was legal
research he could not, as a non-lawyer, recover in respect of it.
[14] However, Sir Gordon Willmer went
further. In an interchange with counsel
(see [1970] 1 QB 27 at 34) he observed that Bowen LJ in London Scottish
Benefit Society v Chorley (1884) 13 QBD 872, [1881–5] All ER Rep 1111 had
said that professional skill can be measured and recognised by law. In his judgment he said that costs are
‘intended to cover remuneration for the exercise of professional legal
skill’ (see [1969] 2 All ER 985 at 987, [1970] 1 QB 27 at 37–38: my
emphasis). That remark is understandable
in the context of a case concerning work which would ordinarily be done by a
lawyer; indeed, as he shortly thereafter observed, the court was not concerned
with the exercise of other professional skills.
In relation to other skills, he says this:
‘Other professional
people, who become involved in litigation and conduct their own cases, may
recover something in respect of their own professional skill, insofar as they
qualify as witnesses and are called as such.
But nobody else, except a solicitor, has even been held entitled to make
any charge, as I understand it, in respect of the exercise of professional legal
skill …’
[15] I do not read Sir Gordon Willmer as
saying that a professional person, other than a solicitor, can only recover in
respect of his own professional skill only to the extent that they qualify as
witnesses and are called as such.
Rather, he gives that as an example.
What he relies on (as can be seen from the interchange mentioned) is the
judgment of Bowen LJ and the reasoning of that, as I have said, applies to the
exercise by any professional of the skill which he has. I leave aside the difficulty which Mr Davies
referred to of deciding who is and who is not a ‘professional’ for this purpose
in the early years of the twenty-first century.
Unfortunately, Sir Gordon Willmer can be read in a different sense ie as
saying that a non-legal expert can claim only if he is a witness in the
case. I think that Stanley Burnton J
must have read him in that sense in the Admiral Management case. However, if that is the correct reading, then
I agree with Stanley Burnton J’s reasoning and would prefer, if it is necessary
to chose between them, to follow the decision in Re Nossen’s Patent
rather than the statement of Sir Gordon Willmer.
[16] The next case in time is Re Andrews [1999]
2 All ER 751, [1999] 1 WLR 1236, a decision which is relied on by Mr Davies. In that case, the defendant was
173
charged with certain offences under the Criminal
Justice Act 1988 and a receiver was appointed over certain assets. The defendant was acquitted and awarded costs
out of central funds. The taxing officer
held that the costs of the receivership proceedings were not included in that
order. The receiver eventually released
the property which had been seized but retained a little over £10,000 to cover
the expenses of the receivership, including her remuneration. The defendant’s application in the
receivership proceedings to recover the costs of the receivership from the
prosecutor (which had initiated those proceedings), including that
remuneration, was dismissed by the judge and by the Court of Appeal. It was held that such remuneration was not a
cost ‘of and incidental to [the] proceedings’ as would have been required under
s 51 of the Supreme Court Act 1981 if they were to be recoverable.
[17] The case is not, however, authority for
the proposition that the expenses of the receivership (including the
remuneration of the receiver) did not fall within the meaning of ‘costs’: it
only establishes that such expenses were not expenses ‘of and incidental to’
the receivership proceedings. Nor is it
authority in the present case for the proposition that the KPMG costs are not
‘costs’ in relation to the applications to discharge the EGO BV and EH3 CVAs;
nor, if they are costs, is it authority for the proposition that they are not
costs of and incidental to those applications.
[18] Decisions in the next two cases were
given within a short space of time but, unfortunately, neither was cited in the
other. I start with Admiral
Management Services Ltd v Para-Protect Europe Ltd [2003] 2 All ER 1017, a
decision to which I have already referred.
This case concerned the question whether the costs of and incidental to
a search and seize order included the cost of investigations carried out by the
claimant’s in-house computer experts. It
was held that, in principle, such costs were recoverable but actual entitlement
depended on whether the employees were truly experts and on the nature of the
work they carried out.
[19] It is to be noted that the judge, Stanley
Burnton J (at [13]), proceeded on the basis of a concession that in the ordinary
way a company cannot recover by way of costs any payment for the time of its
employees in investigating or prosecuting its claim. Accordingly, the claimant relied on the
exception to the general rule described in Re Nossen’s Patent. It claimed that some of its employees were
experts in the field of computers and that it was entitled to recover sums for
their work in connection with the claims against the defendants. It also contended that its employees provided
expert service in determining whether documents found on the defendants’
computers were the claimants’ documents or copied or derived from its documents
or contained the claimants’ confidential information.
[20] Stanley Burnton J plainly thought that
the concession I have referred was correct: he says this (at [34]):
‘Costs do not provide a
complete indemnity to a claimant in a case such as the present. There is conflict between on the one hand the
principle of requiring an unsuccessful defendant to pay comprehensive
remuneration for the time reasonably spent by a claimant’s employees on its
well-founded claim and on the other hand the consequence of so increasing
recoverable costs as to render litigation even more prohibitively expensive
than it is now. To permit recovery of a
reasonable sum for the work of employee experts which, if done by someone who
was not an employee, would be recoverable
174
as an item of costs, is
a relatively minor inroad into the general principle that payment for work done
by employees of a litigant is not recoverable as costs; it does not strike me
as unjust or as imposing an unfair burden on the paying party.’
[21] Stanley Burnton J emphasises the
narrowness of the decision in Re Nossen’s Patent (ie that for the costs
referable to an in-house expert to be recoverable, the individual must truly be
an expert and that the work must be such as to require the exercise of his
particular expertise) by referring to the decision of Bingham J in Richards
& Wallington (Plant Hire) Ltd v Monk & Co Ltd (1984)
Costs LR (Core Vol) 79. As explained by
Stanley Burnton J, the case concerned a claim made by a contractor against a
county council for building costs. The
claim had been formulated and the necessary information obtained by a
non-executive director who was paid a daily fee for his work and was an
employee of the claimant. The claimant
also retained an outside expert in the presentation of claims of the kind in
question. Bingham J rejected the
claimant’s claim to have the cost of the work included in the costs recoverable
from the county council. A substantial
quote from Bingham J’s judgment ((1984) Costs LR (Core Vol) 79 at 83) can be
found in Stanley Burnton J’s judgment. I
set out only a short part of it:
‘The dividing line
between expert and factual evidence is never an easy one … But essentially, I
think, these two gentlemen were engaged on a factual exercise; they were
certainly not independent experts; they were not, in truth, acting as experts
at all and, in my judgment, these costs fall within the ordinary costs that a
litigant must bear of digging out his own factual material, through his own
employees, to prove his own case. Had
outside experts been introduced to carry out this work then it by no means
seems to me to follow that it would in any event have been recoverable as a
cost of the litigation …’ (See [2003] 2 All ER 1017 at [40].)
[22] There is one further passage in the
judgment of Stanley Burnton J which is helpful and instructive in the present
case. He says this (at [43]):
‘It was submitted on
behalf of the claimant that the familiarity of the claimant’s employees with
the documents, clients and information of the claimant qualified them as
experts for the purposes of analysing information obtained from the defendants’
computers, including information obtained by the execution of the search
order. I do not agree. There is no distinction between the
examination of documents on or derived from a computer and the examination of
hard copies of documents. Familiarity
with a party’s business does not make a witness into an expert either for the
purpose of testimony or for the purpose of the recovery of costs. Work in this category is indistinguishable
from that considered by Bingham J in the Richards & Wallington
case. In this connection it seems to
me to be irrelevant that the work might have been done at greater expense by
employees of the firm of solicitors instructed by the claimant. It is the nature of the work in question that
qualifies for inclusion of a costs order, not the amount of cost incurred or
saved. Doubtless a considerable
amount of analysis of information obtained from computers and on execution of
the order was carried out by the claimant.
That work does not seem to me to qualify for an order for costs under
the principle in Nossen’s case.’
(My emphasis.)
175
[23] Next comes the decision of Judge Thornton
QC sitting in the Technology and Construction Court (see Amec Process and
Energy Ltd v Stork Engineers & Contractors BV (No 3) [2002] All
ER (D) 48 (Apr)). He took a very different
approach from Stanley Burnton J who had applied the principles established over
the years prior to the introduction of the CPR. Judge Thornton had this to say:
‘[8] A further factor
concerns the weight to be placed on costs cases decided under the Rules of the
Supreme Court such as Re Elgindata Ltd (No 2) [1993] 1 All
ER 232, [1992] 1 WLR 1207 and Re Nossen’s Patent [1969] 1 All ER 775,
[1969] 1 WLR 683 … Such cases have
little or no bearing on the interpretation and application of the CPR costs code. These cases were decided under the RSC and,
in Phonographic Performance Ltd v AEI Rediffusion Music Ltd [1999] 2 All
ER 299, [1999] 1 WLR 1507 a case decided under the RSC, Lord Woolf MR pointed
out that the CPR are much more specific as to the matters to which the courts
should have regard in deciding what costs order should be made than the
predecessor RSC, even thought the overall discretion provided to the court
under both costs regimes is equally broad.
[9] It follows that I do
not accede to Amec’s submission that Re Elgindata afford some guidance
as to how I should deal with costs in this case nor to Stork’s submission that
Re Nossen’s Patent has any significant relevance to the question of how the
costs of personnel employed by Amec who assisted in the claims, documents and
evidence preparation exercised should be dealt with under the CPR.’
Then later in his judgment (at [112]–[114]) the judge
deals with these costs.
‘[112] Amec engaged its
own personnel and agency staff to undertake much of the work involved in
collecting, analysing and presenting the primary evidence and the supporting
evidence of Mr Prudhoe. These personnel
also undertook much of the preparation of visual evidential aids such as isographs,
histograms, graphs, bar charts, photographs, tables, as built programmes and
overlays. Had this work been undertaken,
at greater expense and with the use of many more hours of time, by legally
qualified personnel employed by Masons, as Amec’s solicitors, this work would
in principle be recoverable. However,
Stork maintains that it is irrecoverable in principle because of the impact of
the Richards & Wallington (Plant Hire) Ltd v Monk & Co
Ltd (1984) Costs LR (Core Vol) 79 decided in 1984 and the even older case
of Re Nossen’s Patent. Both
cases, having been decided under the RSC, are of no assistance in determining
this question under the CPR, even if the wording of the relevant rules is
similar.
[113] CPR 43.2(1)(a)
defines costs as including: “fees, charges, disbursements, expenses, remuneration
…” In principle, the time charges involved in employing these personnel fall
within each of these categories of costs.
It is a matter for detailed assessment whether the tasks performed, on
an hour by hour basis, the numbers of hours claimed, the personnel involved and
the hours rate or other disbursement were incurred at all and, if so, were
properly and reasonably incurred.
However, it would be contrary to the overriding objective if necessary
expenditure which was incurred at less expense than would have been involved
had Amec’s solicitors’ employees undertaken work, was not recoverable in
principle.’
[24] This is in stark contrast to the approach
of Stanley Burnton J. Although the
decision in Admiral Management Services Ltd v Para-Protect Europe Ltd [2003]
2
176
All ER 1017 may have reflected the concession made to
which I have referred, I am left in no doubt that the judge thought it was
properly made. Indeed, his comments in
[43] of his judgment show that he considered the approach in the Richards
& Wallington case and Re Nossen’s Patent to be correct. It would, of course, be idle to suggest that
he had simply overlooked the possibility that the CPR had effected a
fundamental change in the approach which the court should adopt to costs of
this type. I shall return to this point
after completing my review of the cases.
[25] Mr Briggs relies on the decision in R (on
the application of Factortame) Ltd v Secretary of State for Transport,
Environment and the Regions (No 2) [2002] EWCA Civ 932, [2002] 4 All
ER 97, [2003] QB 381 to show that the expense incurred by a litigant on
forensic accountancy and other advice can fall within the ambit of ‘costs’ and
suggests this recognises a continuing advance in the attitude of the courts to
what can fall within that ambit. Grant
Thornton agreed to prepare and submit the claimants’ loss claims in return for
8% of any settlement figure arrived at.
Pursuant to that agreement, Grant Thornton appointed and funded an
independent fisheries expert and an independent accountant with whom they
worked to create a computer model for calculating the losses claimed. They also provided other services, ancillary
to the conduct of the litigation by the claimants’ solicitors, including the
collection of documentary evidence, liaising with the claimants in Spain and
advising offers to settle. Following
settlement, Grant Thornton were paid 8% of the settlement proceeds. The master held that Grant Thornton’s
contingent fee arrangements were not champertous. The Court of Appeal agreed with the master
that the agreements were not champertous.
Although the headnote states that the master also decided that the
claimants could recover the 8% from the Secretary of State, that does not appear
to be correct: what he had ordered on the trial of the preliminary issue he had
ordered (ie whether the fee agreement was champertous) was a payment on account
of costs.
[26] The Court of Appeal was concerned only
with the question whether the fee agreement was champertous. It did not have
before it any question concerning the principles on which any detailed
assessment should be conducted. It is
certainly true that the court regarded the fee agreement as having been a very
sensible way for the claimants to have proceeded, indicating in [28] of the
judgment the nature of the services provided by Grant Thornton as described in
the solicitors’ bill of costs. But, in
[86], the court says:
‘Our view of the 8%
agreement was that it would have appeared attractive not merely to the
Claimants but to the government, who would ultimately be liable to pay the
costs if the claims succeeded. The
government would, in any event, only be liable to pay reasonable costs, which
would be likely to be assessed on an hourly rate basis. Thus, for the government, the 8% would be
likely to operate as a cap.’
[27] The court says nothing about how those
reasonable costs are to be assessed, and cannot, in my judgment, be treated as
indicating any new approach to the assessment of costs. In particular, it does not follow from the
decision that all of the activities carried out by Grant Thornton were ones in
respect of which the claimants could recover a proper hourly rate. Indeed, if the principles applied in the
Richards & Wallington case and Re Nossen’s Patent remain
applicable, the reasonable costs would not include an hourly charge in relation
to a number of
177
the tasks which Grant Thornton carried out. Accordingly, I do not find this decision of
assistance in resolving the issue before me.
[28] The last case to which I refer (and which
I have already mentioned) is Malkinson v Trim [2003] 2 All ER 356, a
case decided under the CPR. In
that case, the principle established in the London and Scottish Benefit
Society case, that a solicitor acting in person could charge for his own
time and for the time of his employees, was held to apply equally where he
carried on business in partnership and some or all of the work was carried out
by one or more of his partners or by employees of the partnership.
[29] At [11] of his judgment (with the
entirety of which the other members of the court agreed), Chadwick LJ
considered the reasoning in the London and Scottish Benefit Society
case. He derived six elements in the
reasoning underlying the decision. These
are: (a) First, that a person wrongfully brought into litigation ought to be
indemnified against the expense to which he is unjustly put. (b) Second, the need is for indemnity, not
punishment or reward; costs are allowed only by way of indemnity, in the sense
that a party cannot be allowed to recover by way of costs expenditure which he
has not incurred. (c) Third, application
of those two principles leads to the conclusion that a person can recover the
cost of employing a solicitor to assist him in the litigation. (d) Fourth, an ordinary litigant—that is to
say, a litigant who is not a solicitor—cannot recover, as costs, compensation
for the expenditure of his own time and trouble because, ‘it is impossible to
determine how much of the costs is incurred through his own over-anxiety’ and
because ‘private expenditure of labour and trouble by a layman cannot be
measured. It depends on the zeal, the
assiduity, or the nervousness of the individual’. (e) Fifth, those considerations are of no
weight where the litigant is himself a solicitor. ‘Professional skill and labour are recognised
and can be measured by the law’. (f)
And, sixth, a rule of practice which enables a litigant who is a solicitor to
recover, as costs, compensation for his own time and trouble is beneficial,
because it is likely to lead to a reduction in the amount which the
unsuccessful opponent will pay under an order for costs.
[30] In identifying the fourth element of the
reasoning, it is to be noted that Chadwick LJ takes the reference to ‘an
ordinary litigant’ as being to ‘a litigant who is not a solicitor’. I think that he includes the words to
indicate what the judges in the London Scottish Benefit Society case
meant by ‘an ordinary litigant’. It was
not necessary for him to address whether, in the twenty-first century, a
litigant who is a professional person other than a solicitor, is in all
respects to be treated in the same way as an ‘ordinary litigant’ in that sense;
nor did he do so.
[31] Chadwick LJ said this ([2003] 2 All ER
356 at [22]):
‘As I have sought to
point out earlier in this judgment the basis of the principle that a solicitor
who acts for himself in litigation is entitled to compensation, by way of
costs, for his time and trouble is a recognition that he (in common with any
other litigant) ought to be indemnified against the expense to which (on the
hypothesis that he has been successful in the litigation) he has been unjustly
put. The special position of a solicitor
is that he does not need to employ others to provide professional skill and
knowledge in the conduct of litigation.
He can provide that skill and knowledge himself. Further, there is no difficulty in measuring
what it costs him to do so; and there is a potential saving in costs if he is
not discouraged from doing so.’
178
[32] Although the London Scottish Benefit
Society case and Malkinson v Trim were both cases concerning
solicitors, Mr Briggs submits that the reasoning is equally applicable to other
professionals who act in person. It is,
he says, because, and only because, the court could not measure the expenditure
of time and trouble by a layman that allowance could not be made for such
expenditure. But the court recognised
that for a solicitor time was money, something which is true, as Mr Briggs
says, for any other professional. The
courts, in the context of costs assessment, can control the amounts recoverable
in respect of experts’ fees where an expert has been properly and reasonably
instructed to prepare a report or attend court to give evidence; there is no
reason in principle, he says, why it could not similarly assess an amount which
is properly chargeable in relation to the time spent by a litigant who is a
professional other than a solicitor.
Even if that goes too far, the position of an office-holder, whether an
administrator or a liquidator, is different since the office-holder’s
remuneration is controlled by the court under the insolvency regime.
[33] Further, so far as concerns the time
spent by a professional’s own employees, it is said that it should follow that,
if the professional himself can charge for his own time, so too he should be
able to charge for the time of his staff.
Alternatively, the decision in Amec Process and Energy Ltd v Stork
Engineers & Contractors BV (No 3) [2002] All ER (D) 48 (Apr)
shows that the CPR mark a shift in the approach of the courts and that, in the
present case, it would be fair to allow all of the KPMG costs (as remuneration
of the officeholders which has to be borne by the estates) incurred in relation
to the litigation as costs recoverable (subject to detailed assessment) against
the applicants.
[34] Ignoring for the moment the decision in
the Amec case (which I will consider later), I see no reason to apply a
different approach in the application of the CPR from that which applied to the
RSC in determining what expenditure, whether or time of money, could in
principle be brought into account on a detailed assessment. The principles derived from the authorities,
and the reasoning of those authorities, applies equally to the CPR as to the
RSC. That is the approach which Stanley
Burnton J applied without hesitation in Admiral Management Services Ltd v
Para-Protect Europe Ltd [2003] 2 All ER 1017; and there is not a hint that
that approach was in any way qualified or affected by the CPR in the judgment
of Chadwick LJ in Malkinson v Trim [2003] 2 All ER 356 in circumstances
where I would have expected to see some mention of it if there had been a
change of approach.
[35] Applying that approach, I reject Mr
Briggs’ submissions. His starting point
is that costs are intended to represent an indemnity to the successful litigant
and that it was only because ‘it is impossible to determine how much of the
costs is incurred through his own over-anxiety’ or because ‘private expenditure
of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the
nervousness of the individual’ to adopt the phrases used in the judgments in
the London Scottish Benefit Society case. In relation to solicitors it was said in that
case that ‘Professional skill and labour are recognised and can be measured by
the law’ (see (1884) 13 QBD 872 at 877, [1881–5] All ER Rep 1111 at 1113) but,
says Mr Briggs, that is true today of any professional person or, if that goes
too far, it is certainly true of officeholders in the course of carrying out
their duties.
[36] However, I consider that the starting
point is not quite as I have just described it.
Since the decision in the London Scottish Benefit Society case,
the rule of practice which it established has been applied only in the context
of litigants in
179
person who are solicitors. Chadwick LJ himself describes the principle
by reference to solicitors and, it is correct to say, that the decision in that
case applied in its terms only to solicitors.
The principle has been applied consistently on that basis for many, many
years; and there are many judicial dicta to the effect that, generally
speaking, a litigant in person cannot recover for his time.
[37] I make the obvious point that, where a
litigant is in fact represented by solicitors, he cannot, so far as concerns
his own time, be in any better a position than if he were a litigant in
person. It would be absurd to allow a
litigant to make a charge for his own time where he could not do so if acting
in person (although I leave open whether a solicitor litigant could charge for
his own time where he undertakes work which could have been done by his own
solicitor thus saving his own solicitor chargeable time). Accordingly, unless Mr Briggs can show that a
litigant in person who is a professional other than a solicitor, can recover
for his time spent, he will be unable (subject to a submission based on their
particular status as officeholders) to show that the officeholders can recover
for their own time.
[38] Now, it is clear that, prior to the
introduction of the litigant in person costs provisions, a litigant in person
who did not carry on a profession could not recover costs in respect of his
time: that, indeed, was precisely why the litigant in person provisions were
introduced. The decision of the Court of
Appeal in Jonathan Alexander Ltd v Proctor [1996] 2 All ER 334, [1996] 1
WLR 518 identified a similar problem in relation to a company represented by a
director: it was not possible to recover for time spent because the court had
no power to make such an award.
CPR Pt 48 now deals with litigants in person: special provision is made
for solicitors under r 48.6(6) read with CPR PD 48, para 52.5. There is no similar provision in the case of
other professionals. Rule 48.6 and PD
48, para 52.5 draw no distinction between a litigant who happens to be a
professional other than a solicitor (or other person entitled to conduct
litigation) and an ordinary litigant in person; they reflect the approach that
the London Scottish Benefit Society case is restricted in its operation
to solicitors. In my judgment, that is a
correct approach: and it would be an inadmissible extension of that case to
treat the principle established by it to other professionals.
[39] I reach the same conclusion by another
route also. The reasoning in the
London Scottish Benefit Society case (see the first three elements
discussed by Chadwick LJ) shows that a solicitor acting in person can only
recover for certain costs which he would have been able to recover had he
instructed an independent solicitor. It
would seem to me that another professional (such as an accountant) should
similarly be able to recover as a litigant in person at most for items which he
would have been able to recover had he instructed an independent professional
(accountant). Whilst he would be able to
recover for the cost of any expert advice given by that independent
professional, he would not be entitled to recover for the cost of general
assistance in the conduct of the litigation.
The litigant in person, even if a professional, cannot recover in
respect of his time spent other than on matters within his own professional
expertise and requiring the attention of an expert.
[40] Further, the position of an office-holder
is, in my judgment, no different. It may
be the case that, in the fulfilment of his duties as an office-holder, he has
to bring or defend litigation. The fact
that he does so does not mean that it is part of his profession to conduct
litigation in the way that it is part of the profession of a solicitor to do
so. An office-holder in not unique in
this respect: trustees of family trusts or of pension funds have fiduciary
duties, the fulfilment of which
180
may require them to bring or defend proceedings. That sort of duty on the part of an
office-holder or other fiduciary does not, in my judgment, afford any basis for
a difference in treatment, vis-Ã -vis the payment of costs by an opposing party,
from any other litigant.
[41] Nor, in my judgment, does the fact that
an office-holder’s remuneration is ultimately under the control of the
insolvency court make any different to the result. The real reason he cannot recover is, I
consider, because he is not a professional seeking to recover costs for time
spent in respect of his own area of expertise.
[42] Accordingly, I do not consider that the
fundamental basis of Mr Briggs’ submissions is sound. Without an extension of the principle in the
London Scottish Benefit Society case, there is no basis on which the
officeholders can recover for their own time.
In my judgment, they cannot do so save to the extent that their
activities can be brought within the Re Nossen’s Patent principle.
[43] So far as the KPMG costs, other than the
costs of the officeholders themselves, are concerned, there is no reason to
depart from the established practice in Re Nossen’s Patent [1969] 1 All
ER 775, [1969] 1 WLR 683. I adopt
everything which Stanley Burnton J said in [34] of his judgment in Admiral
Management Services Ltd v Para-Protect Europe Ltd [2003] 2 All ER 1017 (see
[20], above). It would, in any case, be
a very great departure from previous practice to allow a litigant who is
represented by solicitors to charge for the time of his employees in
undertaking the sort of factual investigation to which Bingham J alluded in
Richards & Wallington (Plant Hire) Ltd v Monk & Co Ltd (1984)
Costs LR (Core Vol) 79 or many other types of work. But if such allowance is to be made in the
case of a litigant who is a professional, I can see no reason for not allowing
in the case of any other litigant carrying on business of any sort or, indeed,
who does not carry on business at all but employs a personal assistant to help
him with the case. I see no logical
stopping point short of permitting an allowance for all time spent by any
employee or assistant on any part of the litigation concerned.
[44] That brings me to Amec Process and
Energy Ltd v Stork Engineers & Contractors BV (No 3) [2002] All
ER (D) 48 (Apr). Should the
decision in that case lead me to a different conclusion? It is no doubt true, as Judge Thornton points
out, that the CPR are more specific than the old RSC as to the matters to which
the courts should have regard in deciding what costs order should be made. That is not to say, however, that the meaning
of ‘costs’ is any different; nor is it to say that, under the CPR, a different
approach should be taken to ascertaining in principle what items which fall
literally within the definition should be allowed on an assessment.
[45] I have some difficulties with the
decision in the Amec case. First
of all, the judge dismisses earlier cases, in particular Re Nossen’s Patent
as having little or no bearing on the CPR costs code. I do not understand why the judge dismissed
Re Nossen’s Patent, since that case goes not to the factors which determine
what costs order should be made, but to what are comprised in ‘costs’ so that
Phonographic Performance Ltd v AEI Rediffusion Music Ltd [1999] 2 All ER
299, [1999] 1 WLR 1507 is not really to the point.
[46] Secondly, in relation to Amec’s personnel
employed in the tasks identified in the passage quoted at [23], above, Judge
Thornton said that, in principle, the time charges involved in employing these
personnel fall within each of these categories listed in the definition of
costs. He does not, however, explain why
he considers that to be so. He seems to
be saying that, as a matter of construction, the time charges fall within the
definition but in doing so he gives no reasons for
181
rejecting a construction which reflects the arguments
which led to the conclusions in Re Nossen’s Patent and other relevant
cases. Had he considered such reasoning,
starting with the London Scottish Benefit Society case, rather than
rejecting the cases as having no bearing, he might well have come to a
different conclusion. I would only add
that, if the judge’s conclusion is correct in the case of a corporate employer,
the position should, logically, be the same in the case of an individual who
carries on business as a sole trader and who uses his staff, for instance his
personal secretary, to carry out tasks in the course of litigation. It is but a small step then to say that the
cost of the time spent by the litigant himself should be allowed in all cases:
but that is simply not a possible construction of the CPR and would render the
litigant in person provisions otiose.
[47] The decisions of Stanley Burnton J and of
Judge Thornton are, I consider, inconsistent.
Although the decision in the Admiral Management case may be said
to be based on a concession, much of what the judge says in support of his
conclusion goes beyond the concession. I
do not consider that I could follow the Amec case without at the same
time saying that the Admiral Management case was wrong and wrong in a
way which went beyond the concession.
Faced with conflicting authorities, I prefer to follow the Admiral
Management case. The result accords
with my perception of the policy of the CPR, one of the driving forces of which
was the desire to reduce the costs of litigation; it would be surprising if,
without clear and express provision, the range of recoverable costs had been
extended in the way that the Amec case suggests and Mr Briggs
submits. Even if I am wrong in thinking
that the actual decision, rather than the concession, in the Admiral
Management case is in conflict with the Amec case, I do not
consider that I should follow the Amec case.
[48] Accordingly, in my judgment it is only
those part of the KPMG costs which fall within the Re Nossen’s Patent
principle which can be brought into account on the detailed assessment. I do not understand that any part of the
costs which are, on that basis, to be brought into account have arisen as a
result of time spent by the officeholders personally. However, for my part, I can see no difference
in principle between time spent by an employee of KPMG and time spent by the
officeholders personally and would allow time spent by the officeholders
personally on truly expert matters to attract the same costs treatment as time
spent by employees.
Order accordingly.
Celia
Fox Barrister.
182
[2006] 1 All ER 183
D and others v Home Office
[2005]
EWCA Civ 38
CIVIL PROCEDURE: IMMIGRATION: QUANTUM
COURT OF APPEAL, CIVIL DIVISION
BROOKE,
THOMAS AND JACOB LJJ
22,
23 NOVEMBER 2004, 27 JANUARY 2005
County court – Jurisdiction – Immigration officer
detaining asylum-seekers under statutory powers – Whether action for damages
for false imprisonment properly brought in county court.
Immigration – Detention – Unlawful detention –
False imprisonment – Damages – Whether immigration officers immune to claims
for damages for false imprisonment – Immigration Act 1971, Sch 2.
The first claimant was the wife of the second
claimant, the third and fourth claimants were their daughters aged 10 and
14. They arrived in the United Kingdom
on 6 February 2002. Under the
Immigration Act 1971 a person who had not otherwise entered the United Kingdom
was to be deemed not to have done so as long as he was detained or temporarily
admitted or released while liable to detention under the powers contained in
Sch 2a to the 1971 Act. Under Sch 2 a person’s liberty could be
restricted, inter alia, by detention under the authority of an immigration
officer pending examination by an immigration officer; or a decision to give or
refuse leave to enter; or a decision whether or not to give removal directions;
or removal. On arrival the first claimant
claimed asylum, and her husband’s and daughters’ claims were dependent on her
claim. Her husband was immediately
detained, whereas she and her daughters were granted temporary admission. The following day they were all transported
to a detention centre. The first
claimant’s application for asylum was refused and, on 13 February, she was
refused leave to enter. The family was
detained in detention centres until 19 February. On 18 February, the first claimant appealed
to an adjudicator. The family was then
granted temporary admission. The
claimants brought an action in the county court seeking, inter alia, damages
for false imprisonment and a declaration that the Home Office had acted
incompatibly with their rights to liberty and security under art 5b of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998). The judge in the
county court allowed an appeal by the Home Office against an order made by the
district judge in the High Court who had struck out the Home Office’s
application to strike out significant parts of the particulars of claim. The claimants appealed. The Court of Appeal considered, inter alia,
whether the law granted any form of immunity to an immigration officer in
respect of what would normally be regarded as an unlawful act causing a loss of
liberty, and whether a complainant’s remedy was limited to a declaration that
the act was unlawful and or/a quashing order, or whether it sounded in
damages. The Home Office contended,
inter alia, that it was an abuse of process for the claimants to have brought
their claim for
________________________________________
aSchedule 2, so far as
material, is set out at [20], [21], below
bArticle 5, so far as
material, is set out at [28], below
________________________________________
183
damages for false imprisonment in the county court,
thereby circumventing the safeguards of the regime for judicial review.
Held – (1) The provisions of Sch 2 to the 1971
Act did not place the claimants in some special category in which they were
afforded a weaker recognition to their right to liberty. That an immigration officer might lawfully
detain an asylum-seeker under Sch 2 without the need for any further acts or
omissions on anybody’s part to trigger off detention did not mean that the
asylum-seeker’s right to liberty was not protected by the law. On the proper interpretation of Sch 2 the
courts would be just as zealous to scrutinise any complaints of an unlawful
infringement of liberty in that context as they would in any other case where
such a complaint was made. Where the
legality of Sch 2 detentions was in issue, there was no hint of any suggestion
that art 5 of the convention did not apply.
If a claimant’s detention was found to be unlawful immigration officers
had no immunity from a claim for damages for false imprisonment. In the interpretation of Sch 2 there was
nothing to suggest that Parliament intended to confer immunity from suit on
immigration officers who had asked themselves the wrong questions, so that
their decision to deprive an immigrant of his liberty was a nullity and
consequently unlawful (see [75], [113]–[115], [121], below); Ullah v
Secretary of State for the Home Dept [1995] Imm AR 166 not followed, R v
Governor of Brockhill Prison, ex p Evans (No 2) [2000] 4 All ER 15
considered.
(2) It was not an abuse of process for the claimants
to have brought the claim for damages for false imprisonment in the county
court. The Administrative Court had no
jurisdiction to hear an action for damages alone. There were no facilities whereby a jury might
be empanelled in the Administrative Court to try an action for damages for
false imprisonment and contested actions involving a human rights element often
required cross-examination which was more conveniently provided for outside the
Administrative Court list. Given the
severe difficulties over legal representation in detention centres and prisons
where such representation was not readily available on the spot, compensation
for unlawfully detained asylum-seekers would be hard to come by within the
strict time limits required by CPR Pt 54.
To restrict access to justice by insisting on proceedings by way of Pt
54 in a damages claim would in such circumstances amount to the antithesis of
the overriding objective in CPR Pt 1.
The appeal would, accordingly, be allowed (see [58], [103]–[107], [128],
[133]–[135], below); R (on the application of Wilkinson) v
Responsible Medical Officer, Broadmoor Hospital (2001) 65 BMLR 15, R (on the
application of P) v Secretary of State for the Home Dept, R (on
the application of Q) v Secretary of State for the Home Dept [2001]
3 FCR 416 and Anufrijeva v Southwark London BC, R (on the application
of N) v Secretary of State for the Home Dept, R (on the
application of M) v Secretary of State for the Home Dept [2004] 1
All ER 833 considered.
Notes
For the right to liberty and security of the person and
the deprivation of liberty in relation to immigration, deportation or
extradition, see 8(2) Halsbury’s Laws (4th edn reissue) paras 127, 133,
and for the powers and duties of the Secretary of State, immigration officers,
etc see 4(2) Halsbury’s Laws (4th edn) (2002 reissue) paras 140, 143.
For the Immigration Act 1971, Sch 2, see 31 Halsbury’s
Statutes (4th edn) (2003 reissue) 127.
184
For the Human Rights Act 1998, Sch 1, Pt I, art 5,
see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 705.
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Anisminic Ltd v The
Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147,
[1969] 2 WLR 163, HL.
Anufrijeva v
Southwark London BC, R (on the application of N) v Secretary of
State for the Home Dept, R (on the application of M) v Secretary
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Austin v Dowling
(1870) LR 5 CP 534, CA.
Bensaid v UK
(2001) 11 BHRC 297, ECt HR.
Board of Education v
Rice [1911] AC 179, [1911–13] All ER Rep 36, HL.
Boddington v British
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HL.
Chahal v UK
(1996) 1 BHRC 405, ECt HR.
Clark v University of
Lincolnshire and Humberside [2000] 3 All ER 752, [2000] 1 WLR 1988, CA.
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(Dec), (2004) Times, 2 January.
Davidson v Chief
Constable of North Wales [1994] 2 All ER 597, CA.
Eshugbayi Eleko v
Officer Administering the Government of Nigeria [1931] AC 662, [1931] All
ER Rep 44, PC.
Everett v Griffiths
[1921] 1 AC 631, HL.
Grinham v Willey
(1858) 4 H & N 496, 157 ER 934, Exch.
Harnett v Bond
[1924] 2 KB 517.
Holgate-Mohammed v
Duke [1984] 1 All ER 1054, [1984] AC 437, [1984] 2 WLR 660, HL; affg
sub nom Mohammed-Holgate v Duke [1983] 3 All ER 526, [1984] QB 209, CA.
Johnstone v Pedlar
[1921] 2 AC 262, [1921] All ER Rep 176, HL.
Keenan v UK
(2001) 10 BHRC 319, ECt HR.
Khawaja v Secretary
of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74, [1983] 2 WLR
321, HL.
Leech v Pankhurst
Prison Deputy Governor, Prevot v Long Larton Prison Deputy Governor [1988]
1 All ER 485, [1988] AC 533, [1988] 2 WLR 290, HL.
Liversidge v Anderson
[1941] 3 All ER 338, [1942] AC 206, HL.
Local Government
Board v Arlidge [1915] AC 120, [1914–15] All ER Rep 1, HL.
McC v Mullan
[1984] 3 All ER 908, sub nom Re McC (a minor) [1985] AC 528, [1984]
3 WLR 1227, HL.
Murray v Ministry of
Defence [1988] 2 All ER 521, [1988] 1 WLR 692, HL.
Musgrove v Toy
[1891] AC 272, PC.
Nadarajah v Secretary
of State for the Home Dept, Amirhanathan v Secretary of State for the
Home Dept [2003] EWCA Civ 1768, [2004] INLR 139.
Nishimura Ekiu v US
(1892) 142 US 651, US SC.
Osman v UK (1998)
5 BHRC 293, ECt HR.
Page v Hull
University Visitor [1993] 1 All ER 97, sub nom R v Lord President of the
Privy Council, ex p Page [1993] AC 682,[1992] 3 WLR 1112, HL.
185
Paul v Chief
Constable of Humberside Police [2004] EWCA Civ 308, [2004] All ER (D) 333
(Mar).
Percy v Hall
[1996] 4 All ER 523, [1997] QB 924, [1997] 3 WLR 573, CA.
Perks v UK (2000)
30 EHRR 33, [1999] ECHR 25277/94, ECt HR.
Pretty v UK
(2002) 12 BHRC 149, ECt HR.
R v Central London
County Court, ex p London [1999] 3 All ER 991, [1999] QB 1260, [1999] 3 WLR
1, CA.
R v Electricity
Comrs, ex p London Electricity Joint Committee Co (1920) Ltd
[1924] 1 KB 171, [1923] All ER Rep 150, CA.
R v Governor of
Brixton Prison, ex p Soblen [1962] 3 All ER 641, [1963] 2 QB 243, [1962] 3
WLR 1154, CA.
R v Governor of
Brockhill Prison, ex p Evans (No 1), R v Governor of Onley Young
Offenders Institution, Rugby, ex p Reid [1997] 1 All ER 439, [1997] QB 443,
[1997] 2 WLR 236, DC.
R v Governor of
Brockhill Prison, ex p Evans (No 2) [2000] 4 All ER 15, [2001] 2 AC
19, [2000] 3 WLR 843, HL.
R v Governor of
Durham Prison, ex p Singh [1984] 1 All ER 983, [1984] 1 WLR 704.
R v Whitfield
(1885) 15 QBD 122, CA.
R (on the
application of A) v Lord Saville of Newdigate (Bloody Sunday
Inquiry) [2001] EWCA Civ 2048, [2002] 1 WLR 1249.
R (on the
application of P) v Secretary of State for the Home Dept, R (on
the application of Q) v Secretary of State for the Home Dept [2001]
EWCA Civ 1151, [2001] 3 FCR 416, [2001] 1 WLR 2002.
R (on the
application of Saadi) v Secretary of State for the Home Dept [2002]
UKHL 41, [2002] 4 All ER 785, [2002] 1 WLR 3131.
R (on the
application of Wilkinson) v Responsible Medical Officer, Broadmoor
Hospital [2001] EWCA Civ 1545, (2001) 65 BMLR 15, [2002] 1 WLR 419.
Racal Communications
Ltd, Re [1980] 2 All ER 634, [1981] AC 374, [1980] 3 WLR 181, HL.
Shingara v Secretary
of State for the Home Dept [1999] Imm AR 257, CA.
Sommersett’s Case
(1772) 20 St Tr 1.
Tan Te Lam v Superintendent
of Tai A Chau Detention Centre [1996] 4 All ER 256, [1997] AC 97, [1996] 2
WLR 863, PC.
Three Rivers DC v
Bank of England (No 3) [2001] UKHL 16, [2001] 2 All ER 513, [2003] 2
AC 1.
Ullah v Secretary of
State for the Home Dept [1995] Imm AR 166, CA.
V v UK (2000) 30
EHRR 121, [1999] ECHR 24888/94, ECt HR.
W v Home Office
[1997] Imm AR 302, CA.
X (minors)
v Bedfordshire CC, M (a minor) v Newham London BC, E (a
minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3
WLR 152, HL.
Youssef v Home Office
[2004] EWHC 1884 (QB), [2004] All ER (D) 606 (Jul).
Appeal
The claimants, ID, her husband AD, and their children TD
and ID, appealed with permission of Laws LJ given on 27 May 2004 from the order
of Judge Crawford Lindsay QC in the Central London County Court on 7 April 2004
allowing the appeal of the Home Office against the order of District Judge
Lightman in the Central London County Court on 7 August 2003 striking out the
Home Office’s application to strike out/and or for summary judgment in respect
of certain parts of the claimants’ particulars of claim in their proceedings
against the Home Office for (i) a declaration that the Home Office had acted
incompatibility with their
186
rights under arts 2, 3, 5, 8, and 14 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as
set out in Sch 1 to the Human Rights Act 1998); (ii) a declaration that the
Home Office had wrongfully discriminated against the claimants contrary to s 29
of the Sex Discrimination Act 1975 and/or ss 19B and/or 20 of the Race
Relations Act 1976; (iii) damages for false imprisonment; (iv) damages for
negligence; and (v) aggravated and/or exemplary damages. Bail for Immigration Detainees and the Immigrant
Law Practitioners Association were given permission to intervene. The facts are set out in the judgment of
Brooke LJ.
Rabinder Singh QC
and Raza Husain (instructed by Bhatt Murphy) for the claimants.
Stuart Catchpole QC
and Jenni Richards (instructed by the Treasury Solicitor) for the
Home Office.
Richard Gordon QC,
Nadine Finch and Richard Hermer (instructed by Birnberg Peirce
& Partners) for the interveners.
Cur adv
vult
27 January 2005.
The following judgments were delivered.
187
BROOKE LJ.
[1] This is an appeal by the claimants, who
are a Czech family of Roma ethnic origin, against an order made by Judge
Crawford Lindsay QC in the Central London County Court on 7 April 2004. The judge had allowed an appeal by the Home
Office against an order made by District Judge Lightman in the same court on 7
August 2003 who had struck out their application to strike out (or grant them
summary judgment in respect of) significant parts of the particulars of claim.
1. THE CLAIM MADE IN THE COUNTY COURT
[2] By the amended particulars of claim in
this action the claimants claimed: (i) a declaration that the Home Office had
acted incompatibly with their convention rights, and in particular those
arising out of arts 2, 3, 5, 8 and 14 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms 1950 (the ECHR) set out in
Sch 1 to the Human Rights Act 1998; (ii) a declaration that the Home Office had
wrongfully discriminated against them contrary to s 29 of the Sex
Discrimination Act 1975 and/or ss 19B and/or 20 of the Race Relations Act 1976;
(iii) damages for false imprisonment; (iv) damages for negligence; (v)
aggravated and/or exemplary damages.
[3] On 28 February 2003 the Home Office
applied for an order striking out and/or awarding summary judgment in their
favour in relation to all the claims set out under (i), (ii) and (iii) above,
other than the claims which related to their convention rights under art 14 of
the ECHR and the claim which related to s 19B of the 1976 Act. District Judge Lightman struck out this
application. Judge Crawford Lindsay QC,
in allowing the Home Office’s appeal, granted them the relief they sought. On 27 May 2004 Laws LJ granted the claimants
permission to appeal to this court as a second appeal, observing:
‘I consider that the
appellants may face a very uphill struggle; but the relation between (1)
administrative detention under the immigration legislation, (2) the tort of false imprisonment, and (3) art 5
of the ECHR is fit for examination in the Court of Appeal and this is an
appropriate case for that to be done.’
[4] It will be noted that as things now stand
the claimants’ claims under art 14 of the ECHR and s 19B of the 1976 Act, and
for damages for negligence, will be proceeding to trial in the county court in
any event. On this second appeal they
have made no attempt to resuscitate their claims under s 29 of the 1975 Act and
s 20 of the 1976 Act. What is in issue
before us is the viability of their claims for damages for false imprisonment,
and of their claims under arts 2, 3, 5 and 8 of the ECHR. Because of the importance of the issues
raised by the appeal, we granted permission to Bail for Immigration Detainees
(BID) and the Immigration Law Practitioners’ Association (ILPA) to intervene. We also granted them permission to file short
witness statements articulating the nature of their concerns in relation to the
issues raised on the appeal. We were
told that their intervention was supported by the Refugee Children’s
Consortium, of which they are both members.
The Home Office filed a witness statement in reply.
[5] The first claimant ID is the wife of the
second claimant AD, and their two daughters TD and ID are now 14 and 10
respectively. They arrived at Waterloo
188
station on the morning of 6 February 2002 by a
Eurostar train. On arrival, the first
claimant claimed asylum, and her husband’s and daughters’ claims were dependent
on her claim. Her husband was
immediately detained, whereas she and her daughters were granted temporary
admission on the basis that they were to stay overnight with her husband’s
maternal uncle. He had already been
granted refugee status. Her husband was
kept at Waterloo station until midnight.
He was then taken to a police station for the night and returned to
Waterloo at 8.30 am the following day. On
the same day the first claimant came back to Waterloo with their daughters, and
the whole family was then transported to Oakington Detention Centre
(Oakington).
[6] By a letter dated 12 February 2002 the
Home Office refused the first claimant’s application for asylum, and on 13
February she was refused leave to enter.
[7] On 14 February 2002 the family were moved
to Yarl’s Wood Detention Centre (Yarl’s Wood), arriving there at about 1
pm. The facts set out in the amended
particulars of claim must be taken to be true for the purposes of this
appeal. The family was kept in a waiting
area until about 6 pm, and were taken to their rooms in C-Block at about 8
pm. They had not eaten since midday, but
they were told that they would soon receive food, and they were given a key
with which they could lock up their possessions.
[8] Nobody in fact came back to see them, and
during that evening there was a serious disturbance at Yarl’s Wood, followed by
a fire. Staff evacuated the centre
leaving the claimants locked up in the centre, and they only managed to escape
with the help of other detainees. The
fire destroyed much of Yarl’s Wood. All
the claimants’ possessions were lost or destroyed, and they were terrified by
what had happened. At about 7.45 am the
following day they were taken to Harmondsworth Detention Centre (Harmondsworth)
in a state of shock, and were detained there until 19 February. On 18 February the first claimant appealed to
an adjudicator, and her notice of appeal was sent to the Home Office the
following day. The family were then
granted temporary admission on the basis that they stayed with the second
claimant’s uncle.
[9] The original particulars of claim were
accompanied by medical reports on each of the claimants. The general gist of these reports was that
they were all suffering from post-traumatic stress disorder, although in the
parents’ case this disorder had originally been triggered by distressing events
prior to their arrival in England. They
were also all suffering from depressive disorders of varying intensity.
[10] As I have said, three of their claims
will be proceeding to trial at any event.
The claim for damages for negligence is founded on the proposition that
it was negligent to detain the family at Yarl’s Wood and Harmondsworth because
the Home Office thereby breached their obligation to take reasonable care for
the family’s safety, health, welfare and security. In particular it was said that insufficient
or no regard was had for fire safety and for the family’s safety from the
criminal acts of others.
[11] These allegations flow from the facts
averred in paras 3 to 8 of the amended particulars of claim, which run along
the following lines. During the period
between about May 2000 and 19 November 2001 when Yarl’s Wood was being
developed and constructed, the local county fire and rescue service had
strongly advised the Home Office to install fire sprinklers in order to protect
life. They gave them this advice because
of the use that was being proposed for Yarl’s Wood, its remoteness, the water
supply that was available to it, and the type of
189
construction that was being used. In the event the centre opened on 19 November
2001 with no sprinklers having been put in place.
[12] In the same month a fire occurred at
Campsfield Detention Centre, and as a result a number of the detainees who had
been held there were transferred to Yarl’s Wood. These included a number of people who had
caused problems at Campsfield. They were
still at Yarl’s Wood when the claimants arrived there in February 2002.
[13] Tension increased at Yarl’s Wood in
January and February 2002. Detainees
issued threats that the place would burn, and in the days leading up to 14
February intelligence reports indicated that a serious incident was likely to occur
there. It was for all these reasons that
it is said that the Home Office did not exercise proper care for the claimants’
safety when they transferred them there on 14 February. Although para 19 of the amended particulars
of claim also refers to the claimants’ safety at Harmondsworth, no separate
particulars are given of this allegation.
[14] The claims under art 14 of the ECHR fall
into two parts. The first relates to the
initial detention of the second claimant over the night of 6–7 February. This gives rise to the complaint that the
Home Office’s policy of selecting the male head of a household for detention
was unlawfully discriminatory on the grounds of sex. The second relates to the detention of the
whole family between 7 and 19 February.
Here complaint is made that the Home Office discriminated against them
on the grounds of their Czech national origin and their Roma ethnic
origin. Reliance is placed in this
context on the provisions of arts 5, 8 and 14 of the ECHR. The claim under s 19B of the 1976 Act relates
to the second of these complaints.
2. THE SCOPE OF THE IMMIGRATION ACT 1971
[15] All the actions of the Home Office that
were under challenge on this appeal were the actions of immigration officers
purporting to act under powers conferred on them by the Immigration Act 1971,
as amended. Section 3 of the 1971 Act
makes general provision for regulation and control of the entry of immigrants
into this country. It provides, so far
as is material:
‘3.—(1) Except as
provided by or under this Act, where a person is not a British citizen—(a) he
shall not enter the United Kingdom unless given leave to do so in accordance
with the provisions of, or made under, this Act; (b) he may be given leave to
enter the United Kingdom (or, when already there, leave to remain in the United
Kingdom) either for a limited or for an indefinite period …’
[16] Section 3(2) provides for the Secretary
of State to lay before Parliament statements of the rules, or of any changes to
the rules, laid down by him for the practice to be followed in the
administration of the 1971 Act. Such
statements are subject to the negative resolution procedure.
[17] Section 4 distinguishes between the role
of immigration officers and the role of the Secretary of State in the administration
of immigration control. In particular:
‘4.—(1) The power
under this Act to give or refuse leave to enter the United Kingdom shall be
exercised by immigration officers, and the power to give leave to remain in the
United Kingdom … shall be exercised by the Secretary of State …
190
(2) The provisions of
Schedule 2 to this Act shall have effect with respect to … (c) the exercise by
immigration officers of their powers in relation to entry into the United
Kingdom, and the removal from the United Kingdom of persons refused leave to
enter or entering or remaining unlawfully; and (d) the detention of persons
pending examination or pending removal from the United Kingdom …’
[18] Section 11(1) of the 1971 Act provides in
relation to arrivals in the United Kingdom, that—
‘a person who has not
otherwise entered the United Kingdom shall be deemed not to do so as long as he
is detained, or temporarily admitted or released while liable to detention,
under the powers conferred by Schedule 2 to this Act …’
[19] Before I come on to refer to the powers
of an immigration officer contained in that schedule, there are three
provisions in Pt III of the 1971 Act (which is concerned with criminal
proceedings) that deserve attention.
Section 24 creates a number of criminal offences in connection with
illegal entry or ancillary matters, and s 24A creates offences of deception in
connection with obtaining leave to enter or remain here, or with efforts to
secure the avoidance, postponement or revocation of enforcement action. And s 28A(1) provides that:
‘28A.—(1) A
constable or immigration officer may arrest without warrant a person—(a) who
has committed or attempted to commit an offence under section 24 or 24A; or (b)
whom he has reasonable grounds for suspecting has committed or attempted to
commit such an offence.’
Section 28A(3)–(5) contains further powers of arrest
without warrant that are granted to immigration officers in connection with
offences created elsewhere in Pt III.
[20] I turn now to Sch 2. Paragraph 1(1) empowers the Secretary of
State to appoint immigration officers for the purposes of the 1971 Act, and
para 1(3) provides that:
‘In the exercise of
their functions under this Act immigration officers shall act in accordance
with such instructions (not inconsistent with the immigration rules) as may be
given them by the Secretary of State …’
Paragraph 2 empowers an immigration officer to examine any
persons who have arrived in the United Kingdom for the purpose of determining
the matters prescribed in that paragraph.
Paragraph 6(1) provides that where such a person is to be given a
limited leave to enter the United Kingdom or is to be refused leave—
‘the notice giving or
refusing leave shall be given not later than twenty-four hours after the
conclusion of his examination (including any further examination) [under para
2] …’
[21] Paragraphs 8 to 11 make provision for
removal directions after a person arriving in the United Kingdom has been
refused leave to enter, and paras 12 to14 make provision for similar directions
in relation to seamen and members of an aircrew. It is the provisions of paras 16 to 18 that
are most directly relevant to the claims for damages for false imprisonment and
the claims in respect of the alleged
191
violations of the claimants’ convention rights under
art 5 of the ECHR. They provide, so far
as is material:
‘16.—(1) A person
who may be required to submit to examination under paragraph 2 above may be
detained under the authority of an immigration officer pending his examination
and pending a decision to give or refuse him leave to enter …
(2) If there are
reasonable grounds for suspecting that a person is someone in respect of whom
directions may be given under any of paragraphs 8 to 10 or 12 to 14, that
person may be detained under the authority of an immigration officer
pending—(a) a decision whether or not to give such directions; (b) his removal
in pursuance of such directions …
17.—(1) A person
liable to be detained under paragraph 16 above may be arrested without warrant
by a constable or immigration officer …
18.—(1) Persons
may be detained under paragraph 16 above in such places as the Secretary of
State may direct …
(4) A person shall be
deemed to be in legal custody at any time when he is detained under paragraph
16 …
21.—(1) A person
liable to detention or detained under paragraph 16 above may, under the written
authority of an immigration officer, be temporarily admitted to the United
Kingdom without being detained or be released from detention; but this shall
not prejudice a later exercise of the power to detain him …’
[22] Finally, Sch 3 to the 1971 Act contains
supplementary provision as to deportation.
Paragraph 2(2) provides for a power of detention under the authority of
the Secretary of State pending the making of a deportation order, and para 2(3)
provides for a similar power of detention pending a deportee’s removal or
departure from this country. Paragraph 7
contains relevant powers of arrest to bolster any restrictions that may have
been imposed on a person under Sch 3.
[23] It will be evident that the provisions of
the 1971 Act which I have cited envisage three different scenarios in which a
person’s liberty may be restricted. (i)
Detention under the authority of an immigration officer pending: (a) examination
by an immigration officer; or (b) a decision to give or refuse leave to enter;
or (c) a decision whether or not to give removal directions; or (d)
removal. (ii) Detention under the
authority of the Secretary of State pending: (a) the making of a deportation
order; or (b) a deportee’s removal or departure from the country. (iii) Arrest without warrant by a constable
or an immigration officer pursuant to the powers created by s 28A of, para
17(1) of Sch 2 to or para 7 of Sch 3 to the 1971 Act.
3. THE POWER OF THE IMMIGRATION OFFICER TO DETAIN
[24] In the present case we are concerned only
with the first of these scenarios. The
claimants were variously detained under the authority of an immigration officer
between 6 and 19 February: (i) pending the examination of the first claimant at
Oakington; (ii) pending the decision to refuse her leave to enter; and (iii)
pending the decision whether or not to give removal directions.
[25] In R (on the application of
Saadi) v Secretary of State for the Home Dept [2002] UKHL 41, [2002]
4 All ER 785, [2002] 1 WLR 3131 the House of Lords cast helpful light on both
the scope and the limits of an immigration officer’s powers of detention under
Sch 2 to the 1971 Act. Lord Slynn of Hadley
delivered the only substantive speech.
The effect of [22]–[26] of his speech can be summarised in
192
this way: (i) the power to detain pending examination
and decision is not subject to any qualification to the effect that the
Secretary of State must show that detention is necessary because the applicants
would run away if not detained; (ii) nor is it limited to those who cannot
appropriately be granted temporary admission, for whatever reason; (iii) the
period of such detention must be reasonable in all the circumstances; (iv) the
immigration officer must act reasonably in fixing the time for examination and
for arriving at a decision in the light of the objective of promoting speedy
decision-making.
[26] Lord Slynn referred with approval to the
judgment of Woolf J in R v Governor of Durham Prison, ex p Singh [1984]
1 All ER 983, [1984] 1 WLR 704, in which he said in relation to the power to
detain pending deportation ([1984] 1 All ER 983 at 985, [1984] 1 WLR 704 at
706):
‘as the power is given
in order to enable the machinery of deportation to be carried out, I regard the
power of detention as being impliedly limited to a period which is reasonably
necessary for that purpose. The period
which is reasonable will depend on the circumstances of the particular case.’
[27] In his speech Lord Slynn set out or
summarised ([2002] 4 All ER 785 at [11]–[20]) the evidence that had been given
about the Oakington regime. Since the
present claimants were detained at Oakington for seven days, it is worth recalling
certain features of this regime. The
purpose of this centre is to deal quickly with what are perceived to be
straightforward asylum claims. Cases are
selected on the basis that they are seen to be capable of a speedy decision. Interviews generally take place during the
third day at the centre, and there are up to 150 scheduled interviews every
day. Asylum seekers have access to
independent legal advice on site, supplied through the auspices of two
non-governmental organisations. Over 90%
of those accepted into the Oakington process have their claims decided while
they are there (as happened in the claimants’ case), and after a decision has
been taken to refuse asylum, 80% are then released on temporary admission
pursuant to para 21(1) of Sch 2 to the 1971 Act (see [21] above). The average length of stay at Oakington is
seven to ten days. In his speech Lord
Slynn concluded (at [24]) that the need to consider the claims of a large
number of applicants intensively in a short period justified their detention as
being reasonably necessary, as a matter of English law, provided that the
physical conditions of detention were acceptable.
4. THE GENERAL SCOPE OF ART 5
[28] In Saadi’s case the appellants’
main challenge to the lawfulness of the Oakington regime was founded on art 5
of the ECHR. That article prescribes
that everyone has the right to liberty and security of person, and that no one
shall be deprived of liberty save in six defined categories of case, and in
accordance with a procedure prescribed by law.
In this appeal no argument was addressed to the second and fourth of
these categories. The other four, so far
as is material, comprise: (i) the lawful detention of a person after conviction
by a competent court (art 5(1)(a)); (ii) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence (art 5(1)(c));
(iii) the lawful detention of persons of unsound mind (art 5(1)(e)); (iv) the
lawful arrest or detention of a person to prevent his effecting an unauthorised
entry in the country (art 5(1)(f)).
193
[29] Article 5(5) provides that: ‘Everyone who
has been the victim of arrest or detention in contravention of the provisions
of this Article shall have an enforceable right to compensation.’
[30] In Saadi’s case Lord Slynn held
([2002] 4 All ER 785 at [43]) that subject to any question of proportionality
the action taken at Oakington was ‘to prevent [a person] effecting an
unauthorised entry into the country’ within the meaning of art 5(1)(f) and that
for the reasons he gave in [45]–[47] the balance was in favour of recognising
that detention under the Oakington procedure was proportionate and reasonable.
[31] Although the 1998 Act was not yet in
force, art 5 had attracted the attention of the House of Lords in R v
Governor of Brockhill Prison, ex p Evans (No 2) [2000] 4 All ER 15,
[2001] 2 AC 19. Lord Hobhouse of
Woodborough explained ([2000] 4 All ER 15 at 38, [2001] 2 AC 19 at 47) that for
detention to be lawful under art 5, a double test is applied. The detention impugned must be lawful under
domestic law, and the domestic law must be in compliance with the ECHR both
substantively and procedurally:
‘If it fails either
test, it is unlawful for the purposes of art 5 and 5(5) applies. Here the detention failed the domestic law
test (see [R v Governor of Brockhill Prison, ex p Evans (No 1),
R v Governor of Onley Young Offenders Institution, Rugby, ex p Reid [1997]
1 All ER 439, [1997] QB 443]) and, like English law, art 5(5) requires
compensation to be paid.’
[32] Lord Hope of Craighead traversed similar
ground. After saying that any detention
which is unlawful in domestic law will automatically be unlawful under art
5(1), carrying with it a mandatory right to compensation under art 5(5), he
continued ([2000] 4 All ER 15 at 30, [2001] 2 AC 19 at 38):
‘The second question is
whether, assuming that the detention is lawful under domestic law, it
nevertheless complies with the general requirements of the convention. These are based upon the principle that any
restriction on human rights and fundamental freedoms must be prescribed by law
(see arts 8 to 11 of the convention).
They include the requirements that the domestic law must be sufficiently
accessible to the individual and that it must be sufficiently precise to enable
the individual to foresee the consequences of the restriction … The third question is whether, again assuming
that the detention is lawful under domestic law, it is nevertheless open to
criticism on the ground that it is arbitrary because, for example, it was
resorted to in bad faith or was not proportionate …’
[33] In Nadarajah v Secretary of State for
the Home Dept, Amirhanathan v Secretary of State for the Home Dept [2003]
EWCA Civ 1768 at [54], [2004] INLR 139 at [54] Lord Phillips of Worth Matravers
MR said:
‘Thus the relevance of
Art 5 is that the domestic law must not provide for, or permit, detention for
reasons that are arbitrary. Our domestic
law comprehends both the provisions of Sch 2 to the Immigration Act 1971 and
the Secretary of State’s published policy, which, under principles of public
law, he is obliged to follow. These
appeals raise the following questions:
(1) What is the
Secretary of State’s policy?
(2) Is that policy
lawful?
(3) Is that policy
accessible?
194
(4) Having regard to the
answers to the above questions, were N and A lawfully detained?’
5. THE CLAIMANTS’ FORMULATION OF THE CHALLENGES MADE
[34] The amended particulars of claim in this
action did not identify the sources of the different principles of law which it
is alleged that the immigration officers failed to take into account properly
or at all when from time to time they authorised the detention, or the
continued detention, of the four claimants.
This court, however, directed them to particularise their claims in this
respect and it then became clear that reliance was being placed on Ch 38 of the
version of the operation enforcement manual then current (for this manual see
Nadarajah’s case (at [26])), reinforced by art 37(b) of the United Nations
Convention on the Rights of the Child (New York, 20 November 1989; TS 44
(1992); Cm 1976).
[35] The claimants derived the following
principles of Home Office internal policy from the text of Ch 38. (i) Detention should be a last resort: (a)
‘[T]he White Paper confirmed that there was a presumption in favour of
temporary admission or release and that, wherever possible, we would use
alternatives to detention.’ (See para
38.1.) (b) In all cases detention must be for the shortest possible time. The aim should be to detain at the end of the
process. (See para 38.1.) (c) ‘All
reasonable alternatives to detention must be considered before detention is
authorised.’ (See para 38.3.) (ii)
Detention must be strictly necessary when the consequences are the splitting up
of a family:
‘It may be necessary on
occasion to detain the head of the household only, thus separating a family …
it would have to be shown to a court that a decision to detain corresponded
with one of the legitimate interests which justify interference and that the
interference to family life went no further than was strictly necessary to
achieve that aim.’ (See para 38.1.1.2.)
(iii) There had to be strong grounds for believing
that individuals were absconding risks or that they had no incentive to comply
with temporary admission:
‘1 There is a
presumption in favour of temporary admission or temporary release.
2 There must be strong
grounds for believing that a person will not comply with conditions of
temporary admission or temporary release for detention to be justified.’ (See para 38.3.)
(iv) Detention may be appropriate if there has been
subterfuge or deception practised by individuals in order to enter the United
Kingdom: ‘Factors influencing a decision to detain … has the subject taken part
in a determined attempt to breach the immigration laws?’ (See para 38.3.)
(v) The detention of a family with children, or of
children themselves, is to be effected only as a last resort and/or where it is
necessary:
‘Families will normally
only be detained to effect removal, and detention should be planned to be
effected as close to removal as possible so as to ensure that families are not
detained for more than a few days.’ (See
para 38.3.)
[36] Finally, art 37(b) of the United Nations
Convention on the Rights of the Child provides that:
195
‘Article 37
States Parties shall
ensure that …
(b) No child shall be
deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a
child shall be in conformity with the law and shall be used only as a measure
of last resort and for the shortest appropriate period of time …’
For the duty to interpret the ECHR in the light of other
obligations in international law, including treaty obligations, see V v UK
(2000) 30 EHRR 121 at 176 (para 76).
[37] Apart from the complaints about unlawful
discrimination which are either proceeding to trial or have been struck out by
the judge without being appealed (see [4] above), the claimants’ claims in
relation to their detention come variously under five different headings. Each claim is preceded by the general rubric
that the detention for the period in question was an unlawful exercise of the
power to detain under the 1971 Act. In
short, they variously contend that the detention in question: (i) was
unreasonable (head 1); (ii) was disproportionate (head 2); (iii) was unlawful
because of a failure to follow applicable internal policy (head 3); (iv) failed
to safeguard or protect the best interests of the two children (head 4); and/or
(v) was unlawful at common law (head 5).
[38] Their complaints embrace the original
detention of AD over the night of 5–6 February and the detention of the whole
family at Oakington (7–14), Yarl’s Wood (14–15) and Harmondsworth (15–19). I omit from what follows all the complaints
about discriminatory treatment that are proceeding to trial in any event.
[39] So far as AD’s original detention is
concerned, there are unparticularised complaints under heads 1, 2 and 4
above. More significantly, the
complaints under head 3 contain assertions that insufficient or no regard was
had to the following requirements of internal policy: (i) that detention should
be a last resort; (ii) that where the consequences were the splitting of a
family, a test of strict necessity should be applied before detention was
authorised; (iii) that in order to justify detention in this case there had to
be strong grounds for believing: (a) that ID or AD represented absconding
risks; (b) that ID or AD had no incentive to comply with the terms of temporary
admission; and/or (iv) that to justify detention on the grounds of deceit,
there had to be subterfuge or deception practised by the claimants in order to
enter this country.
[40] The detention of the whole family at Oakington
is challenged under all five heads, although the complaints under head 4 merge
into the other complaints relating to this period. In short, it is said under heads 3 and 5 that
the immigration officer in question paid insufficient or no regard to the
question whether the detention of the four claimants as a family, and/or the
detention of the two children as children, was a last resort and/or
necessary. As to heads 1 and 2,
complaint is made that insufficient or no regard was had: (i) to the suitability
of other detainees who were to be detained at the centre with the children;
(ii) to the suitability of detaining the two children with adults; (iii) to the
fact that detention would not safeguard and promote the welfare of the two
children.
[41] Apart from the fact that they were not
being split up, all the earlier complaints are repeated in relation to the
five-day period when the family were detained at Yarl’s Wood and
Harmondsworth. In addition, complaint is
made under heads 1 and 2 on the grounds that: (i) the claimants were not
absconding
196
risks, and removal was not sufficiently imminent to
justify detention; (ii) even if they were to be regarded as absconding risks,
removal could not reasonably be said to be sufficiently imminent or possible
within a reasonable timescale, having regard in particular to the age of the
two children; (iii) insufficient or no regard was had for: (a) the claimants’
safety; (b) fire safety; (c) the safety of the claimants from the criminal acts
of others.
[42] Finally, in respect of the detention at
Harmondsworth, complaint is made under heads 1 and 2 to the effect that
insufficient regard was had to the experiences the family had undergone at
Yarl’s Wood.
[43] These are the complaints underlying the
claims for damages for false imprisonment.
In relation to their claims for compensation under art 5(5) of the ECHR and for damages under the 1998 Act,
they contend that the entirety of their detention was not ‘necessary’. It was therefore not in accordance with domestic
law or the Home Office’s own policy.
They also contend that their detention at Yarl’s Wood and Harmondsworth
fell foul of art 5(1)(f) of the ECHR by reason of the three complaints about
their safety at Yarl’s Wood which appear in [41](iii) above.
[44] We are also concerned on this appeal with
the claims under arts 2, 3 and 8 of the ECHR (see [2] and [4] above). The claims under arts 2 and 3 are founded on
the contention that in all the circumstances of the case the family should not
have been detained at Yarl’s Wood because it was not a safe place for
them. Under art 2 it is said that their
detention at Yarl’s Wood: (i) exposed them to a real risk to life; and/or (ii)
led them to face a real and immediate risk to life of which the Home Office had
actual or constructive knowledge, and in respect of which it failed to offer
sufficient protection and/or to take operational steps to secure Yarl’s Wood as
safe.
[45] The scope of the art 3 complaint includes
the family’s detention in Harmondsworth.
It is said that their detention both there and at Yarl’s Wood amounted
to inhuman and degrading treatment in that it caused or materially contributed
to mental suffering and feelings of fear and anguish in them and/or amounted to
a severe interference with their dignity.
[46] Finally, it is said that the entirety of
their detention violated art 8 since it unjustifiably interfered with their
right to respect for mental and physical integrity and/or their dignity. Particular complaint is also made about the
decision to split up the family on the first night of their arrival. This is said to have constituted an
unjustifiable interference with their right to respect for family life.
[47] It is unnecessary to refer in any detail
to the contents of the Home Office’s strike-out application. I have summarised its effect in [3] above,
and I will be referring to their different arguments when I come to address the
merits of the appeal. In short, it was
being said that the claimants were detained in accordance with statutory
powers. They could not therefore
complain of false imprisonment, and in any event the initiation of proceedings
in the county court represented an abuse of process. The application also contained contentions to
the effect that there was no reasonable prospect of success in relation to the
claims which the Home Office were seeking to strike out, and that the arts 2
and 5 claims did not disclose a cause of action known to English law. (Amendments were made to the language of
those two claims before the Home Office’s application was heard.)
[48] It is also unnecessary to say very much
about the proceedings before District Judge Lightman. The claimants’ solicitors had written a long
letter to the Treasury Solicitor on 22 July 2003, followed (in the absence of
any substantive
197
reaction of any kind) by an application on 30 July to
strike out the Home Office’s application.
In short, the district judge was very concerned about the extent to
which the resources of the court were going to be taken up by preliminary
skirmishing in an action which was going to proceed to ‘a big trial of issues’
in any event. He was also singularly
unimpressed by the lack of any effective response by the Home Office to the
claimants’ solicitor’s long letter, and by the fact that they had instructed
counsel to attend a one-day hearing without enabling him to make submissions
about anything other than the procedural directions that might be given.
[49] Judge Crawford Lindsay QC, for his part,
determined the appeal on the (mistaken) basis that the claimants were not
contending that their detention had been in breach of policy. In these circumstances he held that their
claims for damages ‘on the basis of an authorised detention’ should have been
brought in the Administrative Court. He
was influenced in this regard by a dictum of Simon Brown LJ in Percy v Hall
[1996] 4 All ER 523, [1997] QB 924 to the effect that English law provides no
cause of action for invalid administrative acts as such, and by a contention
that the Secretary of State was not vicariously liable for ‘the individuals who
undertook the detention of the claimants’ who were ‘protected by the warrant of
execution’. He rejected the claims under
arts 2, 3, 5 and 8 of the ECHR quite summarily, saying variously that they
should be struck out or that judgment should be entered in relation to each of
them. From his decisions the claimants
now appeal.
6. THE EVIDENCE
[50] It would be inappropriate to say very
much about the evidence submitted on this appeal by the interveners, or the
evidence given in response by the official in charge of the Home Office’s
Detention Services Policy Unit. Suffice
it to say that they evidence on the one hand grave contemporary concern about
different aspects of the practical implementation of Home Office policies
(particularly in relation to the detention of children and members of
vulnerable groups ‘such as torture survivors, those with serious mental and
physical health problems and “disputed minors”’), and on the other hand a
desire at policy level within the Home Office that any period of detention
should comply with the humane conditions prescribed by the Detention Centre
Rules 2001, SI 2001/238, and that cases involving families should be subject to
particularly rigorous review from the very outset.
[51] It would be impossible (and unnecessary
for the purposes of this appeal) to attempt to reconcile the conflicting
evidence we received. It is sufficient
to say that the ILPA’s evidence, in the form of the witness statement of a
solicitor who has acted in many cases involving detainees, was to the effect
that there is currently a very real problem about access to justice for
detained immigration clients, for the reasons on which he expanded in his
statement. BID’s similar evidence was
given by a policy and research officer at their headquarters. She said:
‘Mechanisms of
application for Adjudicator bail and challenges in the High Court are
frequently not exercised as a result of a lack of access to effective legal
representation. In BID’s experience,
current policies and practices of immigration detention render those detained
exceptionally vulnerable to unlawful detention as there is no adequate check on
the power of the immigration service to detain.
In BID’s opinion, pursuit of civil actions by
198
former detainees
provides a crucial mechanism for redress and holding those responsible to
account. The importance of access to
quality legal representation, and a right to seek damages, is even more
important given the increase in the use of detention under fast track processes
and the increase in the use of detention for families.’
[52] One of the impediments in the path of
access to justice is said to be the very low level of remuneration that is now
available for publicly-funded basic asylum work. For a London-based supplier, travel to and
from a detention centre, and waiting time, is paid for at the rate of £30·30
per hour. Legal help is paid for at £57·30
per hour. These rates are significantly
lower than the rates for other types of legal work. The Legal Services Commission told BID in
February 2004 that it acknowledged their concerns about access to legal advice,
in particular for detainees at prisons.
[53] The interveners made the point that the
driving purpose of the ECHR is to secure practical and effective rights. Their clients are often traumatised people
who do not speak English and who have had no experience of any proper judicial
system, let alone one with the procedural peculiarities of the system in
England and Wales. BID is often
contacted by clients who have had no legal representation, or whose
representative is unwilling or unable to apply for bail on their behalf. In their experience, in the early months of
2002 (the period to which the present claims relate), the average length of
time one of their clients spent in detention before the first review by a court
was four months. Self-representation was
said not to be a practical option, although more recently detainees’ use of
simple written guidance has achieved their liberty in a number of cases.
7. THE CAUSATION OF THE ALLEGED LOSS: THE DETENTIONS
BY THE IMMIGRATION OFFICERS
[54] After this necessarily long introduction
I turn to the issues we have to determine on this appeal. I will start with those arising out of the
fact of the detentions themselves.
Fortunately it is possible to clear out of the way quite quickly some of
the issues that caused difficulty before the judge. Thus: (i) the detentions were caused
at each stage of the history by the immigration officers who authorised them;
(ii) the fact that their authority was given protects the detention centre
staff and others who acted under their authority, but it does not protect the
immigration officers themselves if the giving of their authority was an
unlawful act; (iii) subject to any particular considerations arising out of the
interpretation of Sch 2 to the 1971 Act, on first principles the claimants,
having been deprived of their liberty, would have the makings of a claim
against the relevant immigration officer arising out of their detention, and
the burden would lie on the immigration officer to establish a defence to that
claim, whether by way of lawful justification or otherwise; (iv) although the
decision in each case was that of the immigration officer in whom statutory
authority was vested, it was not argued that the Home Office did not have
vicarious responsibility for their acts—and if it had been, the matter would
have been readily corrected by appropriate amendments to the title of the suit
and the joinder of new parties.
[55] For the need to identify with precision
the true cause of the detention, see Grinham v Willey (1858) 4 H & N
496 at 498, 157 ER 934 at 935 and Austin v Dowling (1870) LR 5 CP 534 at
538; and, more recently, Davidson v Chief Constable of North Wales
[1994] 2 All ER 597 at 601–605. For the
concept that a ‘second actor’ may be blameless if he detains a person in
reliance on what appears to be a
199
lawful authority, whether issued by a ‘first actor’
or otherwise (eg by byelaws), see Percy v Hall [1996] 4 All ER 523 at
541, [1997] QB 924 at 947–948, R v Central London County Court, ex p London
[1999] 3 All ER 991 at 1000–1004, [1999] QB 1260 at 1274–1278 and R v
Governor of Brockhill Prison, ex p Evans (No 2) [2000] 4 All ER 15
at 21, 37, [2001] 2 AC 19 at 29, 46.
See, too, Harnett v Bond [1924] 2 KB 517 for the liability of a
‘first actor’ until such time its decision to detain is superseded by a similar
decision taken by another ‘first actor’.
[56] There are two other preliminary matters
that may also be dealt with quite quickly.
The first is that if it is established that any of these immigration
officers made decisions in a manner which fell outside the jurisdiction
conferred on them by the 1971 Act, then their decisions would have been ultra
vires and unlawful (see Anisminic Ltd v The Foreign Compensation Commission
[1969] 1 All ER 208 at 213–214 and 233, [1969] 2 AC 147 at 171 and 195, Page
v Hull University Visitor [1993] 1 All ER 97 at 107, [1993] AC 682 at 701 and
Boddington v British Transport Police [1998] 2 All ER 203 at 225, [1999] 2
AC 143 at 171–172).
[57] The second is that there is on the face
of it nothing in the slightest bit peculiar about an individual bringing a
private law claim for damages against an executive official who has unlawfully
infringed his private rights. For this
proposition it is unnecessary to go much further than Dicey Introduction to
the Study of the Law of the Constitution (8th edn, 1915) (being the last
edition for which the original author was responsible) p 189:
‘In England the idea of
legal equality, or the universal subjection of all classes to one law
administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister
down to a constable or a collector of taxes, is under the same responsibility
for every act done without legal justification as any other citizen. The reports abound with cases in which
officials have been brought before the courts, and made, in their personal capacity,
liable to punishment, or to the payment of damages, for acts done in their
official character but in excess of their lawful authority.’
See, also, Wade and Forsyth Administrative Law (9th
edn, 2004) p 751:
‘Public authorities,
including ministers of the Crown, enjoy no dispensation from the ordinary law
of tort and contract, except in so far as statute gives it to them. Unless acting within their powers, they are
liable like any other person for trespass, nuisance, negligence and so
forth. This is an important aspect of
the rule of law.’
[58] It should be noted in this context that
although CPR Pt 54 now permits the Administrative Court to award damages in
addition to other relief on an application for judicial review, it has no
jurisdiction to entertain a claim for damages alone (see CPR 54.3(2)).
[59] The difficult questions we have to
determine are whether the law grants any form of immunity to an immigration
officer in respect of what would normally be regarded as an unlawful act
causing a loss of liberty, and whether a complainant’s remedy is limited to a
declaration that the act was unlawful and/or a quashing order, or whether it
sounds in damages as well, or as an alternative remedy.
200
8. THE IMMIGRATION OFFICERS’ CLAIM TO IMMUNITY FOR
THEIR ACTIONS
[60] In [28] above I highlighted four
different routes whereby a person may be lawfully deprived of his liberty as a
matter of English law. So far as the
first is concerned, before the very limited changes brought about by the 1998
Act, there were special rules granting immunity from suit for those performing
judicial acts. By s 108 of the Courts
and Legal Services Act 1990 an action now lies against a magistrate only if it
can be proved that he/she acted both in bad faith and in excess of
jurisdiction, and in McC v Mullan [1984] 3 All ER 908, [1985] AC 528 the
House of Lords reaffirmed the common law rule that judges of the higher courts
were immune from suit even if it could be shown that they had been actuated by
malice.
[61] So far as a constable’s power of arrest
is concerned, it has long been settled that he will not be liable in trespass
to the person so long as he can show that he did honestly suspect the matter on
which he was entitled to rely, and that his grounds for suspicion were
objectively reasonable. It has recently
been held that if his discretionary decision to effect an arrest is called into
question, its lawfulness will be judged on ordinary Wednesbury
principles (see Associated Provincial Picture Houses Ltd v Wednesbury Corp
[1947] 2 All ER 680, [1948] 1 KB 223) not only in proceedings for judicial
review but also in actions for false imprisonment (see Holgate-Mohammed v
Duke [1984] 1 All ER 1054 at 1057, [1984] AC 437 at 443 and Paul v Chief
Constable of Humberside Police [2004] EWCA Civ 308 at [30], [2004] All ER
(D) 333 (Mar) at [30]).
[62] Mr Catchpole QC, who appeared for the
Home Office, argued that Lord Diplock’s guidance in Holgate-Mohammed v Duke
was obiter (and was also incorrect). He
said that it had been conceded in the Court of Appeal in that case that the
police must act reasonably when deciding whether to exercise their powers of
arrest (see [1983] 3 All ER 526 at 531, [1984] QB 209 at 213). In the House of Lords, however, the main
issue identified by counsel for the appellant was whether a police constable
might lawfully exercise his power of arrest when his sole object was to put the
suspected person under greater pressure in order to induce a confession. In those circumstances the basis on which the
reasonableness of the officer’s action was to be tested was at the heart of the
matters to be determined on the appeal.
In any event Lord Diplock was doing no more than identifying the basis
on which such an exercise of executive discretion is invariably tested.
[63] The third situation, in which a mental
patient may be lawfully detained without the intervention of a court, has
traditionally afforded immunity by statute to those whose actions comply with
the requirements of the relevant Act of Parliament so long as they act in good
faith and with reasonable care. At the
time when Everett v Griffiths [1921] 1 AC 631 was decided, the
protection was afforded by s 330 of the Lunacy Act 1890. Similar protection, with a shift in the
burden of proof onto the complainant detainee, is now to be found in s 139(1)
of the Mental Health Act 1983. The
reason why one of the defendants was held liable for false imprisonment in
Harnett v Bond [1924] 2 KB 517 was that as a Commissioner in Lunacy he had
no power to direct the detention of anyone (see 546, 555 and 566).
[64] The case of Everett v Griffiths
shows the House of Lords grappling with problems they did not finally resolve
until the Anisminic case was decided nearly fifty years later. Viscount Haldane started with the principle
that if an administrative officer performs functions which have some judicial
attributes
201
he/she is entitled to a measure of immunity. For instance, he said ([1921] 1 AC 631 at
659):
‘The point of law is
to-day not as simple as it was, comparatively speaking, some years ago. The recent decisions of this House in [Board
of Education v Rice [1911] AC 179, [1911–13] All ER Rep 36] and in [Local
Government Board v Arlidge [1915] AC 120, [1914–15] All ER Rep 1] indicate
that in the case of administrative awards there are at least some enforceable
obligations which those making them must observe. What these are and to what extent they go has
to be ascertained by considering the statutes creating the quasi-judicial
powers, and the particular forms in which a general principle has been implied
in the establishment of such judicial authority. This question may prove in particular cases a
delicate and obscure one. Some limitation
of the application in such instances of the broad principle of complete
judicial immunity may well prove to be involved in its resolution.’
[65] See also Lord Atkinson (at 682). It was a passage in the speech of Lord
Moulton, however (at 695–696) which set out a principle which was followed in
later cases, as we shall see:
‘If a man is required in
the discharge of a public duty to make a decision which affects, by its legal
consequences, the liberty or property of others, and he performs that duty and
makes that decision honestly and in good faith, it is, in my opinion, a
fundamental principle of our law that he is protected. It is not consonant with the principles of
our law to require a man to make such a decision in the discharge of his duty
to the public and then to leave him in peril by reason of the consequences to others
of that decision, provided that he has acted honestly in making that decision.’
[66] The editors of Wade and Forsyth,
quoted the first part of this passage (p 790) and then commented:
‘This wide statement
ought probably to be confined to decisions made within jurisdiction, since at
the time it was made there was undoubtedly liability for interference with
personal liberty or property where there was no jurisdiction. It probably means no more than that members
of a tribunal which acts within its jurisdiction and in good faith are not
personally liable to actions for negligence or for acting on no evidence. In this case the House of Lords were aware of
the need to define judicial immunity with reference to the growing adjudicatory
powers of administrative authorities, “a fresh legal problem of far-reaching
importance” [see Lord Haldane [1921] AC 631 at 659]; but they did not attempt
to do it.’
[67] In Everett v Griffiths [1921] 1 AC
631 the defendant Griffiths was the chairman of the Board of Guardians. He had the responsibility of signing orders
for the reception of persons in pauper lunatic asylums, and his order when
signed had effect as if it had been made by a justice of the peace under the
1890 Act. It was this consideration
which enabled the majority of the House of Lords to equate his position with
that of a justice of the peace and afford him equivalent immunity (see 658–660,
665–667, 676–678 and 682–687) without attempting to state any wider principle:
for Viscount Haldane’s extreme reluctance to do so in a case in which one side
was argued by a litigant in person, see [1921] 1 AC 631 at 659–660.
202
[68] It is noticeable that in 1921 the House
of Lords was more protective of the decision-maker than of those whose right to
liberty might have been wrongly infringed.
They were left without a remedy.
In the later case of Harnett v Bond [1924] 2 KB 517, reference
was made (at 539) to a dictum of Lord Lindley in R v Whitfield (1885) 15
QBD 122 at 150 when he said of the Lunatic Asylums Act 1853 that it gave
justices of the peace and medical men large powers, and that it was based on
the theory that they could be trusted.
Reliance on this theory led to many reverses for this country in the
European Court of Human Rights between 1965 and 2000, particularly in cases
involving the rights of prisoners and detainees in mental hospitals. It would therefore be unsafe to adopt it as a
reliable guide in resolving the present appeal now that the 1998 Act is in force.
[69] The present case is concerned with the
liberty of the person. Long before the
1998 Act came into force English law attached particular importance to the
right to liberty. Two citations from
Lord Atkin and one from Lord Griffiths will be sufficient to make this point:
‘no member of the
executive can interfere with the liberty or property of a British subject
except on the condition that he can support the legality of his action before a
court of justice. And it is the
tradition of British justice that judges should not shrink from deciding such
issues in the face of the executive.’
(See Eshugbayi Eleko v Officer Administering the Government of
Nigeria [1931] AC 662 at 670, [1931] All ER Rep 44 at 49 per Lord Atkin.)
‘in English law every
imprisonment is prima facie unlawful, and … it is for a person directing
imprisonment to justify his act. The
only exception is in respect of imprisonment ordered by a judge, who, from the
nature of his office, cannot be sued, and the validity of whose judicial decisions
cannot, in such proceedings as the present, be questioned.’ (See Liversidge v Anderson [1941] 3
All ER 338 at 362, [1942] AC 206 at 245 per Lord Atkin.)
‘The law attaches
supreme importance to the liberty of the individual and if he suffers a
wrongful interference with that liberty it should remain actionable even
without proof of special damage.’ (See
Murray v Ministry of Defence [1988] 2 All ER 521 at 529, [1988] 1 WLR 692
at 703 per Lord Griffiths.)
[70] In R v Governor of Brockhill Prison,
ex p Evans (No 2) [2000] 4 All ER 15 at 21, [2001] 2 AC 19 at 28
Lord Steyn cited the first of Lord Atkin’s dicta and then said:
‘It represents the
traditional common law view. It points
to a decision in the present case that the respondent is entitled to recover
compensation on the ground of false imprisonment where the executive can no
longer support the lawfulness of the detention.’
[71] It was an important part of Mr
Catchpole’s argument that foreign nationals who have not been granted leave to
enter this country fall into a very special category. He reminded us that the power of a state to
control immigration is well recognised in international law and under the ECHR
(see Lord Slynn in R (on the application of Saadi) v Secretary
of State for the Home Dept [2002] 4 All ER 785 at [31], [2002] 1 WLR 3131),
and that this right extends beyond the simple control of entry to encompass the
treatment of aliens and the control of their activities whilst they are present
or resident in the state. He cited in support
of this proposition well-known passages from Nishimura Ekiu v US (1892)
203
142 US 651 at 659, Musgrove v Toy [1891] AC
272 at 283 and A-G for Canada v Cain, A-G for Canada v Gilhula [1906] AC
542 at 546, [1904–7] All ER Rep 582 at 584–585.
For present purposes it is only necessary to quote from the speech of
Lord Atkinson, giving the opinion of the Privy Council in the third of these
cases:
‘One of the rights
possessed by the supreme power in every State is the right to refuse to permit
an alien to enter that State, to annex what conditions it pleases to the
permission to enter it, and to expel or deport from the State, at pleasure,
even a friendly alien, especially if it considers his presence in the State
opposed to its peace, order, and good government, or to its social or material
interests … [A]s it is conceded that by the law of nations the supreme power in
every State has the right to make laws for the exclusion or expulsion of
aliens, and to enforce those laws, it necessarily follows that the State has
the power to do those things which must be done in the very act of expulsion …’
[72] The judgment of Lord Denning MR in R v
Governor of Brixton Prison, ex p Soblen [1962] 3 All ER 641 at 660, [1963]
2 QB 243 at 300 shows that powers of the type under discussion in this appeal
were originally exercised under the royal prerogative. Sir William Blackstone in his Commentaries
on the Laws of England (1765) vol 1, pp 259–260 said that strangers who
came spontaneously were liable to be sent home whenever the king saw
occasion. After referring to an
unreported case decided in 1896, Lord Denning said:
‘It seems clear from
that case that by international law any country is entitled to expel an alien
if his presence is for any reason obnoxious to it; and as incidental to this
right, it can arrest him, detain him, and put him on board a ship bound for his
own country.’
[73] These powers were first codified in the
Aliens Orders 1916 and 1953, and Lord Denning shows how very distinguished
academic writers queried the legality of the Crown’s earlier powers of arrest
and expulsion. However that may be—and
the matter was never tested in the courts—legal challenges under the Aliens
Orders tended to be directed towards the validity of the underlying deportation
order rather than to the detention itself.
So long as that order was not a sham, or made with a lack of bona fides,
or for any unlawful or ulterior purpose (see Ex p Soblen [1962] 3 All ER
641 at 662, [1963] 2 QB 243 at 305) the courts would not interfere with the
consequential direction for administrative detention.
[74] It should be remembered that all these
early cases preceded the reforms to judicial review in the mid-1970s. Indeed, Atkin LJ’s famous dictum in R v
Electricity Comrs, ex p London Electricity Joint Committee Co (1920)
Ltd [1924] 1 KB 171 at 205, [1923] All ER Rep 150 at 161 was designed to
ensure that administrative decisions affecting a person’s legal rights were
subject to the rule of law:
‘Wherever any body of
persons having legal authority to determine questions affecting the rights of
subjects, and having the duty to act judicially, act in excess of their legal
authority they are subject to the controlling jurisdiction of the King’s Bench
Division exercised in these writs.’
204
The word ‘subjects’ needed some qualification in 1924
because aliens lawfully within this country in time of peace were accorded the
same civil rights as British citizens (see Johnstone v Pedlar [1921] 2
AC 262, [1921] All ER Rep 176).
[75] In Khawaja v Secretary of State for
the Home Dept [1983] 1 All ER 765 at 782, [1984] AC 74 at 111–112 Lord
Scarman put it beyond doubt that the rule of law extended to aliens subject to
administrative detention:
‘[D]oes our law’s
protection extend to aliens and non-patrials?
There is a suggestion that, because an alien is liable to expulsion
under the royal prerogative and a non-patrial has no right of abode, it is less
difficult to infer a Parliamentary intention to deprive them of effective
judicial review [of] a decision to infringe their liberty … Habeas corpus protection is often expressed
as limited to “British subjects”. Is it
really limited to British nationals?
Suffice it to say that the case law has given an emphatic No to the
question. Every person within the
jurisdiction enjoys the equal protection of our laws. There is no distinction between British
nationals and others. He who is subject
to English law is entitled to its protection.
This principle has been in the law at least since Lord Mansfield freed
“the black” in Sommersett’s Case (1772) 20 St Tr 1 at 20. There is nothing here to encourage in the
case of aliens or non-patrials the implication of words excluding the judicial
review our law normally accords to those whose liberty is infringed.’
See also Lord Templeman ([1983] 1 All ER 765 at 794–795,
[1984] AC 74 at 127–128).
[76] It follows that although people like the
present claimants are described in the statute as being ‘liable to detention’,
so that they can be subjected to administrative detention under the authority
of an immigration officer without any reference to a court of law, English law
will remain jealous of their right to liberty and will scrutinise with care the
legality of any executive act that deprives them of that liberty. So much is apparent from the decision of Woolf
J in R v Governor of Durham Prison, ex p Singh [1984] 1 All ER 983,
[1984] 1 WLR 704 (see [26] above) which later received the approval of the
Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre
[1996] 4 All ER 256 at 265, [1997] AC 97 at 111, and the House of Lords in
Saadi’s case (see [25] above).
9. THE SCOPE OF THE REMEDY
[77] Mr Catchpole showed us a line of cases in
which it was stated that English law provides no cause of action for invalid
administrative acts as such: see X (minors) v Bedfordshire CC,
M (a minor) v Newham London BC, E (a minor) v
Dorset CC [1995] 3 All ER 353 at 365 and 367, [1995] 2 AC 633 at 732 and
734–735, Percy v Hall [1996] 4 All ER 523 at 541, [1997] QB 924 at 947
and W v Home Office [1997] Imm AR 302 at 309 and 311. He suggested that if the claimants’ arguments
were correct, the courts would for the first time be creating a strict
liability at common law for what he described, rather unhappily (since personal
liberty is in issue), as a ‘simple public law error’.
[78] The first two of these cases do no more
than restate a well-known proposition of public law, one which led to the
re-emergence in recent years of the tort of misfeasance in public office which
requires a finding of malice to complete the cause of action. The third, W v Home Office, requires
closer attention.
[79] In that case an immigrant was wrongfully
detained for nine days because of a filing error. He was released immediately the error came to
light, and he later
205
brought a civil action against the Home Office for
damages for negligence: it was not a false imprisonment case. His claim failed. Lord Woolf MR, giving the judgment of this
court, said ([1997] Imm AR 302 at 305) that it was necessary for the powers
exercised by the immigration officers to be considered in the context of the
statutory policy of the 1971 Act as a whole.
After reciting, as I have done, the relevant statutory provisions, he
identified (at 307–308) five features of the scheme which were common ground between
the parties:
‘(1) … individuals
requiring leave to enter enjoy no right or presumption that they should be
entitled to be at large before leave is granted.
(2) A wide discretion is
given to the immigration officers not only whether to admit detain or release
but also in respect of the investigations they are entitled to make.
(3) The relevant
statutory provisions are concerned with the giving of authority to detain;
actual detention is in hands of other persons.
(4) It is not contested
in this case that the plaintiff was lawfully detained at all times and
(5) It is not contended
that an invalid decision authorising detention makes the detention unlawful.’
[80] He went on to say (at 308):
‘The powers given to
immigration officers by the Act are quintessentially those which are enforced
by judicial review and in the normal way if a decision to release an immigrant
is improperly delayed the remedy is an order of mandamus, not to release the
immigrant, but to come to a decision whether to release or not. If that decision is improperly taken the
remedy is again to seek a prerogative order, this time certiorari. In both cases no personal cause of action
exists which could give a right to recover damages for breach of statutory duty
and no such breach is alleged.’
[81] He then went on to consider, and dismiss,
the contention that the plaintiff had a viable cause of action in
negligence. He said (at 311):
‘The essence of the
allegation made is that the decision-making body has “negligently” taken into
account matters it should not have taken into account by having regard to some
irrelevant, and indeed if the allegation be right, misleading information,
namely that contained in the questionnaire.
But this cannot constitute the tort of negligence. If it did it is difficult to see why any
maladministration does not give rise to a liability to pay damages at common
law. In fact it is because there is no
liability to pay damages for maladministration in the ordinary way that the
central and local government ombudsmen are required to investigate
maladministration and where they find a complaint proved to exercise their
discretion as to whether to recommend the payment of compensation.’
[82] This decision provides strong support for
Mr Catchpole’s submissions. But it must
be observed that it preceded the coming into force of the 1998 Act and the
vigorous observations made by the House of Lords in recent years about the
importance of the right to liberty. I
have already observed that the plaintiff did not claim damages for false
imprisonment, a cause of action which was to be lifted out of the shadows three
years later by the House of Lords in R v Governor of Brockhill Prison, ex p
Evans (No 2) [2000] 4 All ER 15, [2001] 2 AC 19. The decision also
206
preceded the publication of the powerful analysis by
Dr Christopher Forsyth in 1998 (‘The Metaphysic of Nullity’ Invalidity,
Conceptual Reasoning and the Rule of Law in Forsyth and Hare The Golden
Metwand and the Crooked Cord: Essays in Public Law in Honour of Sir William
Wade (1998)) about the different positions of the ‘first actor’ and the
‘second actor’ (see Lord Steyn’s admiring comments in Boddington v British
Transport Police [1998] 2 All ER 203 at 223, 225–226, [1999] 2 AC 143 at
169, 172). The concession in [79](5)
above views the situation from the second actor’s standpoint.
[83] Before leaving W v Home Office I
should mention that Lord Woolf MR added ([1997] Imm AR 302 at 312):
‘In gathering
information, and taking it into account the defendants are acting pursuant to
their statutory powers and within that area of their discretion where only
deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants
would be inconsistent with the proper performance of their responsibilities as
immigration officers. In conducting
their inquiries, and making decisions in relation to immigrants, including
whether they should be detained pending those inquiries, they are acting in
that capacity of public servant to which the considerations outlined above
apply.’
[84] After citing Lord Moulton’s dictum in
Everett v Griffiths [1921] 1 AC 631 at 695–696 (see [65] above) Lord Woolf
said:
‘Lord Moulton may in the
context of that case have been contemplating immunity from suit for negligence but
the sentiment supports the concept of it not being fair or reasonable to impose
liability for negligence in the case of an immigration officer performing his
public duty.’
[85] The effect of this decision is that if
Home Office officials get their files into a muddle with the result that an
immigrant loses his liberty unnecessarily, he has no right to compensation from
anyone. On the other hand, if his loss
of liberty had been directed by a court, the court ought to have detected such
a muddle before making its decision. And
although the court would possess immunity from suit if a mistake were made, the
immigrant would have a cause of action against his lawyers who negligently
failed to read the papers properly.
[86] Even stronger support for Mr Catchpole’s
arguments was forthcoming from the decision of a two-judge division of this
court in Ullah v Secretary of State for the Home Dept [1995] Imm AR
166. In that case notice of intention to
make a deportation order was served on the plaintiff, who was then detained for
17 days under the authority of the Secretary of State before being released
once the Secretary of State had decided—
‘that the decision to
deport was not in accordance with the law due to the fact that full
consideration was not given to all your applications prior to service of the
deportation notice.’ (See 168.)
This was another case involving an administrative muddle
within the Home Office: in this case officials had overlooked or been unaware
of the existence of no fewer than four different applications made by the
plaintiff for indefinite permission to remain to which he had received no
response at all.
[87] The plaintiff in that case instituted an
action for damages for false imprisonment, and Gatehouse J, overruling Master
Hutt, refused to strike it out.
207
This court (Kennedy and Millett LJJ) allowed the Home
Secretary’s appeal. This was of course a
Sch 3 case (see [22] above). Kennedy LJ
held (at 170–171) that the giving of a notice of intention to make a
deportation order made Mr Ullah’s detention legitimate:
‘That condition
precedent would not be fulfilled if no such intention had been formed, or if
the intention had been formed in bad faith, but otherwise once notice is given
in accordance with the regulations to a person liable to be deported, that
person may be detained, and his detention will be lawful even if the notice is
later withdrawn or set aside.’
He had earlier said (at 170) that the Home Secretary’s
action was ‘plainly not ultra vires’, although it may have been
irrational and therefore liable to be declared void.
[88] Millett LJ, for his part, rested his
decision on his interpretation of para 2(2) of Sch 3 to the 1971 Act, which
read:
‘Where notice has been
given to a person in accordance with regulations under section 18 of this Act
of a decision to make a deportation order against him … he may be detained
under the authority of the Secretary of State pending the making of the
deportation order.’
He observed that where the requirements of that paragraph
were satisfied, the detention was lawful and no claim for false imprisonment
could be maintained.
[89] He was willing (at 171) to contemplate
that the exercise of the power of detention would have been unlawful not only
if no notice in the proper form had been served, but also if the contents of
the notice had been untrue. If the Home
Secretary had not in fact made any decision to deport the plaintiff, or if he
had made such a decision in bad faith, or if the person served with the notice
was not a person liable to deportation, there would not have been a decision of
a kind contemplated by para 2(2). What
the paragraph did not require, however, was that the decision should be the
right decision, or without flaw, or otherwise impervious to successful
challenge by way of judicial review:
‘A decision made by the
Secretary of State in good faith against a person liable to be deported is a
decision within the contemplation of the paragraph even if it later appears
that it is a decision which he should not have made or which he should not have
made without further consideration.’
(See [1995] Imm AR 166 at 171.)
10. THE EFFECT OF THE HUMAN RIGHTS ACT 1998 ON THE
REMEDY
[90] The judgment in Ullah’s case is,
on the face of it, binding on us, in so far as the two members of the court
spoke with one voice on any material issue.
It is therefore necessary to consider whether either the coming into
force of the 1998 Act or any subsequent pronouncements of the House of Lords
have made any material difference to the law since Ullah v Secretary of
State for the Home Dept was decided.
Ullah’s case was clearly treated as a ‘second actor’ case. So long as there appeared to be a valid
notice of intention to deport, which was not vitiated in any of the ways
suggested in the judgments, no challenge could be made to the legality of the
administrative detention that followed.
[91] Ex p Evans (No 2) [2000] 4
All ER 15, [2001] 2 AC 19 (see [31] above) was also a false imprisonment
case. The plaintiff had been sentenced
to two years’ imprisonment, but she had served a period of time in prison
before her trial, and the prison authorities had to work out when her correct
release date was. They
208
were not assisted in their task by the
impenetrability of the relevant criminal justice legislation and some earlier
Divisional Court case law on which the prison governor understandably
relied. This case law was later held to
be wrong. As a result the plaintiff served
two months longer in prison than she should have done.
[92] The House of Lords ruled unanimously that
she was entitled to recover damages for false imprisonment. They made a clear distinction between
detention for the period provided for by the order of the Crown Court, when
properly computed, and the later period which arose out of a miscalculation by
an officer of the executive, however understandable. Although the 1998 Act was not in force,
reference was made to its effect in three of the speeches.
[93] Lord Steyn said ([2000] 4 All ER 15 at
20–21, [2001] 2 AC 19 at 28) that a balance had to be struck between ‘the
injustice of holding the governor liable in tort’ and ‘the injustice of leaving
the victim of a substantial period of unlawful imprisonment without a
remedy’. When he considered the
‘comparative potency’ of the competing claims to ‘the just solution of the
case’ he thought that on balance the applicant’s arguments outweighed those of
the Solicitor General. He cited for the
second time in three years Lord Atkin’s dictum in Eshugbayi Eleko v Officer
Administering the Government of Nigeria [1931] AC 662 at 670, [1931] All ER
Rep 44 at 49 (see [70] above for his comment on that case).
[94] Of art 5 of the ECHR he said, quite
briefly, that it reinforced the view which he had already accepted. In his view its provisions ruled out the
defence that the governor had acted in accordance with the law as it was
understood at the time.
[95] Lord Hope of Craighead, for his part,
went back ([2000] 4 All ER 15 at 24, [2001] 2 AC 19 at 32) to first principles
in analysing the ingredients of the tort of false imprisonment. It was a tort of strict liability to which
there was an answer if the defendant could prove, among other things, that his
act was permitted by law. This question
had to be determined at the time of the imprisonment. He said ([2000] 4 All ER 15 at 26, 27, [2001]
2 AC 19 at 35) that it was no answer to a claim based on a tort of strict
liability to say that the governor took reasonable care, or that he had acted
in good faith when he made his calculations:
‘The authorities are at
one in treating it as a tort of strict liability. That strikes the right balance between the
liberty of the subject and the public interest in the detection and punishment
of crime. The defence of justification
must be based upon a rigorous application of the principle that the liberty of
the subject can be interfered with only upon grounds which a court will uphold
as lawful.’
[96] He went on ([2000] 4 All ER 15 at 29,
[2001] 2 AC 19 at 37) to consider art 5 of the ECHR because the application of
the tort of false imprisonment to the facts of Ex p Evans (No 2)
had raised a novel point of some difficulty, and it was of interest to see
whether the provisions of art 5 supported the conclusion he favoured as to the
present state of domestic law. I have
quoted the relevant passage in his speech at [32] above. In short, he said that there were three
aspects of art 5(1) which had to be satisfied: (i) the detention must be lawful
under domestic law; (ii) as an extra requirement, domestic law must be
sufficiently accessible to the individual and sufficiently precise to enable
him to foresee the consequences of the restriction on his rights; (iii)
domestic law must not be arbitrary (in the sense that it was resorted to in bad
faith) or disproportionate. Since the
last two months of detention in Ex p Evans (No 2) were not lawful
under domestic law, the defence of lawful justification would have fallen at
the first hurdle under the ECHR.
209
[97] Lord Hobhouse spoke even more eloquently
about the importance of personal liberty.
He said ([2000] 4 All ER 15 at 34, [2001] 2 AC 19 at 42):
‘Imprisonment involves
the infringement of a legally protected right and therefore must be
justified. If it cannot be lawfully
justified, it is no defence for the defendant to say that he believed that he
could justify it. In contrast with the
tort of misfeasance in public office, bad faith is not an ingredient of the
tort; it is not a defence for the defendant to say that he acted in good faith
…’
[98] And ([2000] 4 All ER 15 at 35, [2001] 2
AC 19 at 43):
‘It is contrary to
principle that the executive should not be liable for illegally interfering
with the liberty of the subject. The
remedy of habeas corpus and the tort of false imprisonment are important constitutional
safeguards of the liberty of the subject against the executive.’
[99] He traversed again ([2000] 4 All ER 15 at
37–38, [2001] 2 AC 19 at 45–46) the arguments relating to the entitlement of a
‘second actor’ to rely on an order made by a court of competent jurisdiction,
and he then went on to consider art 5
of the ECHR. He found that it
corresponded to existing English law. In
particular it recognised ‘an affirmation of the basic right not to be deprived
of one’s personal liberty (Lord Atkin)’ and it required ‘the payment of
compensation for unlawful detention as does English law (Lord Atkin)’. He concluded on this aspect of the case
([2000] 4 All ER 15 at 38, [2001] 2 AC 19 at 47):
‘In the present case,
the state (through the legislature) has defined the power of detention; the
state (through the executive) has detained the plaintiff in excess of that
power; it creates no injustice that the state should compensate the
plaintiff. It certainly does not make it
just for the state to fail to compensate the plaintiff that one or more
emanations of the state have misunderstood the legislation. Under the convention, the state is already
under an obligation to compensate; when the Human Rights Act 1998 comes into
force it will also be under a domestic law obligation to do so.’
[100] R v Governor of Brockhill Prison, ex
p Evans (No 2) [2000] 4 All ER 15, [2001] 2 AC 19 is an important
case for the purposes of this appeal for three main reasons. The first is that it reaffirmed in ringing
tones the importance that English law attaches to personal liberty even before
the 1998 Act came into force. Secondly,
it shows Lord Hobhouse making a clear distinction between a case where a
person’s liberty is taken away by an unlawful executive act, where bad faith is
not an essential ingredient of the tort, and the situations embraced by the
tort of misfeasance in public office, where it is. And thirdly it shows how art 5 of the ECHR
not only made compensation for its violation mandatory but was also to add two
further important ingredients into our law if the executive is to succeed in a
defence of lawful justification: the law must be accessible and it must be
proportionate.
[101] I have already referred (see [33] above)
to the decision of this court in Nadarajah v Secretary of State for the Home
Dept, Amirhanathan v Secretary of State for the Home Dept [2004] INLR
139. In that case two immigrants
challenged the lawfulness of their detention under a policy which legitimised
their detention so long as their removal from this country was imminent. The court, citing Chahal v UK (1996) 1
BHRC 405 at 430 (para 112), held that all that was required under art 5(1)(f)
was that ‘action is being taken with a view to deportation’: it did not
210
import the stricter test of proportionality for which
the applicants were contending. The
reason why the court held that the detentions were unlawful was because the law
was not accessible. The evidence showed
that the immigration service was operating a policy, when considering the
imminence of removal, of disregarding information from those acting for asylum
seekers to the effect that legal proceedings (whether by way of appeal or
judicial review) were about to be initiated, however credible that evidence
might be, and it had not made that policy public.
[102] We were also referred to the recent
decision of Field J in Youssef v Home Office [2004] EWHC 1884 (QB),
[2004] All ER (D) 606 (Jul) in which the legality of a long period of
administrative detention was put in issue on a claim for damages for false
imprisonment. The judge, applying Woolf
J’s test in R v Governor of Durham Prison, ex p Singh [1984] 1 All ER
983, [1984] 1 WLR 704 (see [26] above), held that it was for him to judge
whether the final period of detention was reasonable, although he should make
allowance for the way in which government functions, and be slow to
second-guess the executive’s assessment of diplomatic negotiations. In the event he concluded that the detention
should lawfully have ended 14 days earlier than it did. He added that he would have reached the same
conclusion even if he had applied a Wednesbury standard of
reasonableness to the Home Secretary’s decision-making process.
[103] I do not consider that it is necessary
to dwell for very long on Mr Catchpole’s contention that it was an abuse of
process for the claimants to have brought this claim for damages for false
imprisonment in the county court, thereby allegedly circumventing the
safeguards of the judicial review regime.
I must emphasise that this was a complaint about the choice of
initiating process: it is always possible for a circuit judge to direct the
transfer of part of a private law action to the High Court for trial by a judge
with Administrative Court experience if this is thought desirable on case
management grounds.
[104] It is greatly to be hoped that
complaints of this kind about procedural exclusivity may fall away under the
CPR regime, for the reasons given by Lord Woolf MR in Clark v University of
Lincolnshire and Humberside [2000] 3 All ER 752 at 838 and 839–840, [2000]
1 WLR 1988 at 1995–1996 and 1996–1998 (paras 25–27 and 32–39). In particular, he said (para 39) that the
relevant question was not whether ‘the right procedure’ had been adopted, but
whether the protection provided by what was still at that time RSC Ord 53 had
been flouted in circumstances which were inconsistent with the proceedings
being able to be conducted justly in accordance with the general principles
contained in CPR Pt 1. ‘Those principles
are now central to determining what is now due process’, he said.
[105] I have no doubt at all that if these
proceedings are viable, they are properly brought as a private law action. I have already shown (see [58] above) that
the Administrative Court has no jurisdiction to hear an action for damages
alone. There are no facilities whereby a
jury may be empanelled in the Administrative Court to try an action for damages
for false imprisonment (see s 66(3)(b) of the County Courts Act 1984 and s
69(1)(b) of the Supreme Court Act 1981), and contested actions involving a
human rights element often require cross-examination which is more conveniently
provided for outside the Administrative Court list. In R (on the application of
Wilkinson) v Responsible Medical Officer, Broadmoor Hospital [2001]
EWCA Civ 1545 at [62], (2001) 65 BMLR 15 at [62], [2002] 1 WLR 419, Hale LJ
said that it should not matter whether proceedings in respect of forcible
treatment of detained patients were brought by way of an
211
ordinary action in tort, an action under s 7(1) of
the 1998 Act, or judicial review: see also Simon Brown LJ (at [24]), and R
(on the application of P) v Secretary of State for the Home Dept, R
(on the application of Q) v Secretary of State for the Home Dept
[2001] EWCA Civ 1151 at [20], [2001] 3 FCR 416 at [20], [2001] 1 WLR 2002.
[106] I would add that the evidence of the
interveners suggests that compensation for unlawfully detained asylum seekers
will be hard to come by within the strict time limits required by CPR Pt 54,
given the severe difficulties over legal representation in those detention
centres and prisons where such representation is not readily available on the
spot. To restrict access to justice by
insisting on proceeding by way of CPR Pt 54 in a damages claim would in such
circumstances amount to the antithesis of the overriding objective in CPR Pt 1.
[107] I have already noted how in false
imprisonment claims a judge in the county court will already have to apply
Wednesbury principles in deciding whether a police officer’s discretionary
decision to effect an arrest was a reasonable one. Recent authority in this court includes not
only my judgment in Paul v Chief Constable of Humberside Police [2004]
EWCA Civ 308, [2004] All ER (D) 333 (Mar) (see [61] above) but also the
judgment of Latham LJ in Cumming v Chief Constable of Northumbria Police
[2003] EWCA Civ 1844, [2003] All ER (D) 305 (Dec), (2004) Times, 2 January, in
which he held (at [43]–[44]) that art 5 of the ECHR did not require the court
to evaluate the exercise of discretion in any different way from the exercise
of any other executive discretion, although it must do so in the light of the
important right to liberty which is at stake.
See also Boddington v British Transport Police (see [56] above)
in which Lord Steyn said ([1998] 2 All ER 203 at 226, [1999] 2 AC 143 at 172):
‘the rule of procedural
exclusivity … does not apply in a civil case when an individual seeks to
establish private law rights which cannot be determined without an examination
of the validity of a public law decision.’
[108] There is, incidentally, nothing in the
judgment of Lord Woolf CJ in Anufrijeva v Southwark London BC, R (on
the application of N) v Secretary of State for the Home Dept, R (on
the application of M) v Secretary of State for the Home Dept [2003]
EWCA Civ 1406, [2004] 1 All ER 833, [2004] QB 1124 to suggest that the county
court is not an appropriate forum for a damages claim of this kind which
includes a human rights element, especially when part of it has to be litigated
in the county court in any event (compare the decision of Collins J in
Andrews v Reading BC [2004] EWHC 970 (QB), [2004] All ER (D) 319 (Apr)).
[109] Mr Catchpole advanced a number of sound
reasons why cases of this kind, if they are viable at all, should be entrusted
to a judge with Administrative Court experience, at any rate until matters
settle down and clear principles emerge from the case law. He was on less secure ground, however, when
he suggested that the CPR do not enable courts in private law actions to sieve
out misconceived challenges just as effectively as the permission stage of the
judicial review process, and his floodgates arguments contained an echo of
those deployed unsuccessfully by his Home Office clients in the House of Lords
in Leech v Pankhurst Prison Deputy Governor, Prevot v Long Larton Prison
Deputy Governor [1988] 1 All ER 485, [1988] AC 533. If an immigrant has been deprived of his
liberty by unlawful executive action, he should not be denied access to the
courts by recourse to floodgates arguments for the mandatory compensation to
which he is entitled in respect of his false imprisonment.
[110] Mr Catchpole also submitted that we
should bear in mind the consideration that when the Administrative Court
quashes a decision of an
212
immigration officer on the grounds of public law
error, there will be nothing to stop him/her making the same decision, this
time by a lawful route. It appears to me
that the answer to this objection lies in the field of causation. In Nadarajah v Secretary of State for the
Home Dept, Amirhanathan v Secretary of State for the Home Dept [2004] INLR
139 this court held that if the immigration officers’ decisions had not been
tainted by their failure to disclose the policy on which they relied, the
applicants’ lawyers would have ensured that legal proceedings would have been
in fact initiated, and not merely threatened, if this was what was needed to
prevent their clients’ detention. In
R (on the application of Saadi) v Secretary of State for the Home
Dept [2002] 4 All ER 785, [2002] 1 WLR 3131, on the other hand, Lord Slynn
observed (at [48]) that the failure to give the right reason for the detention,
and the giving of no reasons, or the wrong reasons, on the form delivered to
the claimants, although procedurally inept, did not affect the legality of
their detention.
[111] Mr Catchpole sought to make a
distinction between what he called ‘no power’ cases (a category in which he
placed Ex p Evans (No 2) and those police cases in which it is
shown that a police officer did not have the requisite grounds for effecting an
arrest) and cases where an immigration officer is given by Parliament what he
described as an extremely wide-ranging power to detain. This distinction misses the point. If a court judges that in making his decision
to detain, an immigration officer failed to take into account matters of
material significance (viz he has overlooked relevant features of internal
policy or paid no regard to the fact that the prospective detainee is a child
protected by art 37(b) of the United Nations Convention on the Rights of the
Child), then he will have strayed outside his wide-ranging powers. As a result he will have had ‘no power’ to
authorise the detention in question.
This is what the doctrine of ultra vires is all about. Kennedy LJ must have been using the phrase in
some different sense in Ullah v Secretary of State for the Home Dept
[1995] Imm AR 166 (see [87] above) when he suggested that an irrational
decision is not necessarily a decision made ultra vires.
[112] I do not consider that my judgment in
Shingara v Secretary of State for the Home Dept [1999] Imm AR 257 takes
matters any further forward. That was a
‘second actor’ case in which I said that it was far too late for Mr Shingara to
challenge the lawfulness of an administrative direction made two years before
he initiated judicial review proceedings.
It was not a case in which he was claiming damages for any imprisonment
that occurred at the time when the impugned direction was made.
11. CONCLUSION ON THE MAIN ISSUES AS TO IMMUNITY AND
THE REMEDY
[113] It is now necessary to pull the threads
together, on the assumption that the claimants will be able to prove at trial
that they were the victims of an unlawful decision. The critical questions we have to answer are
whether the provisions of Sch 2 to the 1971 Act place the claimants in some
special category in which they are afforded a weaker recognition of their right
to liberty, and whether English law, now viewed through the prism of the ECHR,
affords an immunity to immigration officers in any way comparable to that
afforded to courts of law. If the
answers to these questions are that the detentions were unlawful by English
law, there will be no defence to the claim for damages for false
imprisonment. If, on the other hand,
there is no illegality under English law, then we have to determine whether the
detention of this family with their two young children was disproportionate in
the light not only of Home Office internal policy but also of art 37(b) of the
United Nations Convention on the Rights of the Child. Needless to say, if it were to
213
transpire, following disclosure of documents, that
immigration officers were given some unpublished instructions relating to the
treatment of the families of Roma asylum seekers, then the Home Office would
encounter the same difficulties as they experienced in Nadarajah’s case,
but there is at present no sign of this in the evidence.
[114] The high-water mark of the Home Office’s
case on the first issue is Lord Woolf MR’s statement in W v Home Office
[1997] Imm AR 302 (see [79] above) to the effect that individuals requiring
leave to enter enjoy no right or presumption that they should be entitled to be
at large before leave is granted. This,
however, is no more than a statement of the obvious, because an immigration
officer may lawfully detain them under Sch 2 in the circumstances set out in
[23] above without the need for any further acts or omissions on anybody’s part
to trigger off the detention. In
Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984]
AC 74, however, the House of Lords made it clear that their right to liberty
was nevertheless protected by the law (see [75] above). It follows that on the proper interpretation
of Sch 2 to the 1971 Act the courts will be just as zealous to scrutinise any
complaints of an unlawful infringement of liberty in that context as they would
in any other case where such a complaint is made. Article 5 of the ECHR, after all, protects
‘everyone’ (see [28] above), and in Saadi’s case, where the legality of
Sch 2 detentions was in issue, there was no hint of any suggestion that art 5
did not apply at all.
[115] The more difficult question is whether
immigration officers whose grant of authority to detain can be set aside on
Anisminic principles are nevertheless entitled to immunity from an action
for damages for false imprisonment unless they acted in bad faith or from some
improper motive. This could only be on
the basis that principles that were developed in pre-Anisminic case law
will still protect them unless they strayed wholly outside their jurisdiction
(in the old, narrow sense). This seems
to have been the approach of Kennedy LJ in Ullah’s case (see [87] above)
although in that case, it must be noted, there was no challenge to the
discretionary decision to detain.
[116] The decision of the European Court of
Human Rights in Perks v UK (2000) 30 EHRR 33 at 49–51 (paras 37–40)
contains a useful summary of English domestic law concerning the immunity of
justices prior to the enactment of s 108 of the 1990 Act. The court summarised (at 49 (para 39)) the
effect of the decision of the House of Lords in McC v Mullan [1984] 3
All ER 908, [1985] AC 528 (see [60] above) in these terms:
‘In its judgment, a
magistrates’ court acted in excess of jurisdiction in three circumstances only:
(1) if it acted without having jurisdiction over the cause, (2), if, although
it had jurisdiction, it were guilty of some gross and obvious irregularity of
procedure, or (3) if it made an order that had no proper foundation in law
because of a failure to observe a statutory condition precedent.’
[117] Mr Catchpole relied on protection of
this kind for his clients, but apart from relying on Lord Moulton’s dictum in
Everett v Griffiths [1921] 1 AC 631 at 695–696 (see [65] above) where he
alone of the members of the House of Lords set out a wider principle governing
non-court bodies exercising judicial functions—and it was not suggested to us
that an immigration officer performed a judicial function—he did not show us
any clear authority outside Ullah’s case or W v Home Office, or
at any rate any that could survive the decision of the House of Lords in Ex
p Evans (No 2).
214
[118] In Re Racal Communications Ltd
[1980] 2 All ER 634, [1981] AC 374 Lord Diplock made a very clear post-Anisminic
distinction between courts on the one hand and administrative tribunals and
other authorities possessing decision-making powers on the other. He said of the latter ([1980] 2 All ER 634 at
639, [1981] AC 374 at 383):
‘Any error of law that
could be shown to have been made by them in the course of reaching their
decision on matters of fact or of administrative policy would result in their
having asked themselves the wrong question with the result that the decision
they reached would be a nullity.’
[119] The position of courts was quite
different (see [1980] 2 All ER 634 at 639, [1981] AC 374 at 383). They performed judicial acts, for which they
enjoyed judicial immunity. It was for
this reason that Parliament had to make special provision in s 9(3) of the 1998
Act so as to recognise that whatever English domestic law might say,
compensation might be payable under art 5 of the ECHR even in respect of
judicial acts done in good faith. It did
not consider that any special provision was required in relation to the
non-judicial acts of immigration officers which unlawfully infringed a
claimant’s right to liberty.
[120] In my judgment we are entitled to regard
ourselves as not bound by the decision in Ullah v Secretary of State for the
Home Dept [1995] Imm AR 166 because (1) we heard far more argument on
material questions of law than was available to the court in Ullah’s
case; (2) in Ullah’s case there was no clear distinction between the
liability of the first actor and the liability of the second actor (Dr
Forsyth’s analysis of the importance of this distinction post-dated Ullah’s
case), the challenge in that case was made to the decision of the second actor,
and in the context of a Sch 3 detention which raises different considerations;
(3) the reach of the law of false imprisonment over unlawful acts of the
executive that lead to an infringement of liberty has now been illuminated by
the decision of the House of Lords in Ex p Evans (No 2); (4) in
Ullah’s case Kennedy LJ appears to have taken for granted that a
pre-Anisminic approach to the decision of an officer of the executive
was appropriate in the post-Anisminic world without explaining why; and
(5) the policy considerations that inspired the dictum of Lord Moulton in
Everett v Griffiths are no longer sustainable in cases concerned with the
right to liberty in the light of the way in which the House of Lords weighed
the balance in favour of the victim of a wrongful imprisonment in Ex p Evans
(No 2). Mr Gordon QC, who
appeared for the interveners, advanced the valid argument that the policy
arguments for denying a right to damages for unlawful detention pale by
comparison with the policy arguments for admitting such a right, because of the
enormous damage that is caused, on occasion, by unlawful detention in terms of
suffering and damage to physical and mental health. Indeed, the claimants submit that this is
such a case.
[121] In short, it appears to me that we are
at liberty, unconstrained by binding authority, to interpret Sch 2 to the 1971
Act without any preconceived notions. If
we do so, there is nothing there to suggest that Parliament intended to confer
immunity from suit on immigration officers who asked themselves the wrong
questions, so that their decision to deprive an immigrant of his/her liberty
was a nullity and consequently unlawful.
This is a conclusion at which one can arrive with a measure of
satisfaction because it seems entirely wrong that someone who has been wrongly
detained by the executive because of a filing error or some other incompetence
in their offices should not be entitled to compensation as of right. I see no reason, incidentally, in relation to
a claim against a first actor, to obtain first either a declaration that the
detention was unlawful or a quashing order: it is
215
sufficient that the claimant was unlawfully detained
on his authority and suffered damage as a result.
[122] I will now turn to the individual
claims. In my judgment, apart from the
complaint of discriminatory treatment relating to the father’s detention on the
first night, the Home Office is entitled to summary judgment on all the claims
relating to the detention of members of the family up to the end of their stay
at Oakington, where they were being detained for examination. Although it is true that in R (on
the application of Saadi) v Secretary of State for the Home Dept
[2002] 4 All ER 785, [2002] 1 WLR 3131 the House of Lords did not expressly
determine any claim that the detention of a family with children under the
Oakington process infringed the children’s rights under the United Nations
Convention on the Rights of the Child, I consider that following the decision
in Saadi’s case the claims that the detention of the family for a
short period within that process was unlawful have no real prospect of success.
[123] The continuing detention of the family
thereafter raises different issues. My
initial view (even when I had been apprised of the fact that no notice of appeal
was served until 19 February, contrary to my earlier belief that the notice had
been served at Oakington) was that it would be quite wrong, in the light of the
view of the law which I had formed, to say that the family had no real prospect
of successfully showing that they were unlawfully detained after the period of
detention for examination at Oakington was complete. The only reason given for their continued
detention thereafter was the risk of absconding. There was no clear evidence that their departure
was imminent; the continued detention of the children raised additional
questions of law to be determined; the question whether they were rationally to
be regarded as an absconding risk or were rationally singled out for unusual
treatment should await a trial on the facts; and issues relating to the
appropriateness of Yarl’s Wood (and then Harmondsworth) as a place of detention
for this family were also fit for trial.
Further issues of proportionality arose under art 5 of the ECHR so far
as the children’s continuing detention was concerned. Before handing down this judgment, however,
we have been shown the form on which an immigration officer authorised their
continuing detention, and I consider that we should now hold a further short
hearing at which we can hear the parties’ further submissions on this issue now
that the underlying facts have become clearer.
If the claimants persuade us that such an order would still be
appropriate, I would reinstate the claims for damages for false imprisonment
and/or compensation for breaches of art 5 convention rights from the time that
the family was transported to Yarl’s Wood to the time they were released at
Harmondsworth five days later.
12. THE CONTENTIONS IN RESPECT OF ARTS 2, 3 AND 8
[124] I turn now to consider the free-standing
claims under arts 2, 3 and 8 of the ECHR.
So far as the first two are concerned, there was a dispute between the
parties about the threshold criteria which should be applied to these claims. Put shortly, the Home Office rely on Osman
v UK (1998) 5 BHRC 293 at 321 (paras 115–116) and Pretty v UK (2002)
12 BHRC 149 at 180–181 (paras 49–51) as setting a high threshold, which they
say that the claimants’ case does not come within measurable distance of
attaining. The claimants, on the other
hand, contend that when the state itself is choosing to take positive steps
that expose individuals to a real risk to their lives, or to treatment which
objectively speaking can be categorised as inhuman, the threshold is
significantly lower. They rely in this
regard on R (on the application of A) v Lord Saville of
Newdigate (Bloody Sunday
216
Inquiry) [2001] EWCA Civ 2048 at [28]–[29],
[2002] 1 WLR 1249 at [28]–[29], and on the general proposition that the state
owes a particular duty to individuals who are detained (see Keenan v UK
(2001) 10 BHRC 319 at 348–349 (para 90)).
[125] It seems to me that since the negligence
claim is proceeding to trial in any event, it would be wrong to stop these
claims from going to trial, too, since the claims in point of law are clearly
arguable. The Home Office sought to rely
on their own case relating to the effect of the intelligence they had received
about the troublemakers’ threats at Yarl’s Wood, but this is exactly the kind
of issue for which the majority of the House of Lords considered in Three
Rivers DC v Bank of England (No 3) [2001] UKHL 16, [2001] 2 All ER
513, [2003] 2 AC 1 that claimants should have the benefit of disclosure of
documents and cross-examination, and not see their claims extinguished at the
summary judgment stage. These processes
will have to be gone through in any event in this action in connection with the
trial of the negligence claim.
[126] Although I am sceptical about the merits
of the art 3 claim so far as it relates to the four days’ detention at
Harmondsworth, a claim of this kind is inevitably fact-sensitive, and it
appears to me that it would be properly arguable that on the morning of 15
February this unhappy family were so clearly traumatised by their terrifying
experiences at Yarl’s Wood that to continue to lock them up amounted to inhuman
treatment, especially as there could be no confident expectation of an early
determination of their asylum appeal.
[127] Article 8 considerations are involved in
the claims under arts 5 and 14, in so far as they are proceeding to trial. I do not consider that the claimants have a
real prospect of success in relation to any free-standing art 8 claim. There was a brave attempt to link the
evidence in the medical reports with a viable art 8 claim in that the short
period of detention complained of infringed the claimants’ right to mental
stability (see Bensaid v UK (2001) 11 BHRC 297 at 310 (para 47)), but
the available evidence falls a long way short of what would be needed to
establish a valid claim under art 8 in its own right, and I prefer the
arguments of the Home Office on this issue.
13. RESULT OF THE APPEAL
[128] I would therefore allow the appeal and,
subject to the outcome of the further hearing, set aside the order of the judge
in so far as it extinguished the claims for damages for false imprisonment
and/or compensation under art 5(5) of the ECHR in relation to the continuing
detention of the family after the period of detention for examination at
Oakington was completed, the claims for compensation under art 2 of the ECHR in
relation to the family’s detention at Yarl’s Wood, and the claims for
compensation under art 3 of the ECHR in relation to their detention at Yarl’s
Wood and Harmondsworth. Following the
further hearing, the claimants should prepare appropriate amendments of the
particulars of claim to give effect to this direction, and submit them to me as
a single judge of the court for a written ruling if there is any dispute
whether the proposed amendments correctly reflect the intention of the court.
[129] There are issues in this action which
must be tried in a county court, and there are also issues which must be tried
by a judge with Administrative Court expertise.
There is nothing to prevent a High Court judge with Administrative Court
expertise sitting as a judge in the county court pursuant to s 5(3) of the
County Courts Act 1984, and this would appear to be the appropriate way of
conducting the trial of the action if the appropriate administrative
arrangements can be made.
217
[130] I know that the Home Office is concerned
with the practical implications of a decision of this kind. The evidence of the interveners showed,
however, that when the Home Office determined to embark on the policy of using
powers of administrative detention on a far larger scale than hitherto, the
practical implementation of that policy threw up very understandable concerns
in individual cases. The transition from
a world where decisions affecting personal liberty are made by officials of the
executive who operate according to unpublished criteria, and where there is no
way of compensating those who lose their liberty through administrative muddles
and misfiling, to a world where the relevant criteria have to be published and
where those officials are obliged to ensure that their decisions are
proportionate and to justify them accordingly, is bound to be an uneasy one in
the early years, and mistakes are bound to be made. But so long as detention, which may cause
significant suffering, can be directed by executive decision and an order of a
court (or court-like body) is not required, the language and the philosophy of
human rights law, and the common law’s emphatic reassertion in recent years of
the importance of constitutional rights, drive inexorably, in my judgment, to
the conclusion I have reached.
[131] Of course courts must be astute to stop
in their tracks those claims that have no obvious merit, and the skills and
experience of the judges of the Administrative Court must be called in aid at
any rate in the early days to ensure that the actions are efficiently tried,
with no need for oral evidence and cross-examination except on issues that
raise irresolvable issues of fact. But
the courts have always shown themselves adept in altering their procedures to
accommodate new challenges. In the last
resort I see no reason why the claim of an immigrant deprived of his liberty by
an unlawful decision of an immigration officer should go uncompensated by reason
of practical concerns about administrative inconvenience.
[132] After all, all that the law requires is
that the policies for administrative detention are published and take
appropriate heed of ECHR requirements, and that immigration officers do not
stray outside the four corners of those policies when taking their decisions in
individual cases. If they follow that
course, the decision of the House of Lords in R (on the application
of Saadi) v Secretary of State for the Home Dept [2002] 4 All ER 785
shows that they have nothing to worry about.
[133] For these reasons, subject to the
outcome of the further hearing, I would allow the appeal to the extent
indicated in this judgment and remit the matter to the county court with a view
to case management decisions being taken there to give effect to this judgment.
THOMAS LJ.
[134] I agree.
JACOB LJ.
[135] I also agree.
Appeal allowed in part.
Dilys
Tausz Barrister
218
.
[2006] 1 All ER 219
R (on the application of Hammond) v Secretary of State
for the Home Department
[2005]
UKHL 69
CRIMINAL; Sentencing: HUMAN RIGHTS; Fair Trial
HOUSE OF LORDS
LORD
BINGHAM OF CORNHILL, LORD HOFFMANN, LORD RODGER OF EARLSFERRY, LORD CARSWELL
AND LORD BROWN OF EATON-UNDER-HEYWOOD
31
OCTOBER, 1 NOVEMBER AND 1 DECEMBER 2005
Sentence – Mandatory life sentence – Murder –
Tariff – Existing prisoners – Right to a fair trial – Whether transitional
provisions providing for applications or references to High Court judge without
oral hearing compatible with convention right to have sentence fixed by fair
and public hearing by independent and impartial tribunal – Human Rights Act
1988, Sch 1, Pt I, art 6(1) – Criminal Justice Act 2003, Sch 22, para 11(1).
The claimant was a prisoner who had been sentenced to
mandatory life imprisonment but had not had his minimum term of imprisonment
fixed by the Secretary of State. He was
affected by the transitional provisions in Sch 22 to the Criminal Justice Act
2003 under which the Secretary of State was to refer the cases of existing
prisoners to a judge of the High Court for determination of the minimum term
which he should serve. By para 11(1)a of Sch 22 that reference was to be determined
without an oral hearing. Paragraph 11(1)
also governed applications for reviews of minimum terms where certain existing
prisoners sentenced to mandatory life imprisonment had already had their
tariffs set by the Secretary of State.
The claimant brought proceedings for judicial review. He sought a declaration that para 11(1) was
incompatible with the requirement in art 6(1)b of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998) that, in the determination of any criminal charge against him,
‘everyone is entitled to a fair and public hearing …’ The Divisional Court allowed his application
and granted a declaration to the effect that, in accordance with the relevant
provision of the 1998 Act, para 11(1) was to be read as subject to the implied
provision that where it was necessary to comply with the existing prisoner’s
rights under art 6(1) an oral hearing would be held. The Secretary of State appealed to the House
of Lords.
________________________________________
a
Paragraph 11, so far as material, is set out at [5], below
b
Article 6, so far as material, is set out at [10], below
________________________________________
Held – Paragraph 11(1) of Sch 22 to the 2003
Act, in precluding the possibility of an oral hearing at first instance, was
incompatible with the convention. The
imposition of sentence at first instance was part of a criminal trial. There could be cases in which justice
required an oral hearing but para 11(1) did not allow it. It followed, since the conclusion of the Divisional
Court as to the result of such incompatibility had not been challenged, that
para 11(1) was to be read subject to an implied condition that the High Court
judge had the discretion to order an oral hearing, where such hearing was
required to comply with a prisoner’s rights
219
under art 6(1) of the convention. The appeal would therefore be dismissed (see
[13], [16]–[18], [24], [29]–[31], [35], [36], [47], below).
Decision of the Divisional Court [2005] 4 All ER 1127
affirmed.
Notes
For the right to a public hearing, see 8(2) Halsbury’s
Laws (4th edn reissue) para 138.
For the Human Rights Act 1998, Sch 1, Pt I, art 6,
see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 706.
For the Criminal Justice Act 2003, Sch 22, para 11,
see 34 Halsbury’s Statutes (4th edn) (2004 reissue) 1069.
Cases referred to in opinions
Adolf v Austria
(1982) 4 EHRR 313, [1982] ECHR 8269/78, ECt HR.
Albert v Belgium
(1983) 5 EHRR 533, [1983] ECHR 7299/75, ECt HR.
Begum (Runa)
v Tower Hamlets London BC [2003] UKHL 5, [2003] 1 All ER 731, [2003] 2 AC
430, [2003] 2 WLR 388.
Brown v Stott (Procurator
Fiscal, Dunfermline) [2001] 2 All ER 97, [2003] 1 AC 681, [2001] 2
WLR 817, PC.
Colozza v Italy
(1985) 7 EHRR 516, [1985] ECHR 9024/80, ECt HR.
Condron v UK
(2001) 8 BHRC 290, ECt HR.
De Cubber v Belgium
(1985) 7 EHRR 236, [1984] ECHR 9186/80, ECt HR.
Döry v Sweden App
No 28394/95 (12 February 2003, unreported), ECt HR.
Edwards v UK
(1992) 15 EHRR 417, [1992] ECHR 13071/87, ECt HR.
Findlay v UK
(1997) 24 EHRR 221, [1997] ECHR 22107/93, ECt HR.
Göç v Turkey
[2002] ECHR 36590/97, ECt HR.
Guzzardi v Italy (1980)
3 EHRR 333, [1980] ECHR 7367/76, ECt HR.
IJL v UK (2000) 9
BHRC 222, ECt HR.
Kyprianou v Cyprus
[2004] ECHR 73797/01, ECt HR.
Le Compte v Belgium
(1981) 4 EHRR 1, [1981] ECHR 6878/75, ECt HR.
Miailhe v France (No
2) (1997) 23 EHRR 491, [1996] ECHR 18978/91, ECt HR.
Monnell v UK (1988)
10 EHRR 205, [1987] ECHR 9562/81, ECt HR.
R (on the
application of Alconbury Developments Ltd) v Secretary of State for the
Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 All ER 929,
[2003] 2 AC 295, [2001] 2 WLR 1389.
R (on the
application of Anderson) v Secretary of State for the Home Dept
[2002] UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC 837, [2002] 3 WLR 1800.
R (on the
application of Dudson) v Secretary of State for the Home Dept [2005]
UKHL 52, [2005] 3 WLR 422.
Riepan v Austria [2000]
ECHR 35115/97, ECt HR.
Rowe v UK (2000)
8 BHRC 325, ECt HR.
Twalib v Greece
(2001) 33 EHRR 584, [1998] ECHR 24294/94, ECt HR.
X v UK (1981) 4
EHRR 188, [1981] ECHR 7215/75, ECt HR.
Cases referred to in list of authorities
Aston Cantlow and
Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37,
[2003] 3 AlL ER 1213, [2004] 1 AC 546, [2003] 3 WLR 283.
Baines v Army
Prosecuting Authority [2005] EWHC 1399 (Admin), [2005] NLJR 1207, DC.
Bryn v Denmark
App No 13156/87 (1 July 1992, unreported), ECt HR.
Campbell v UK
(1985) 7 EHRR 165, [1984] ECHR 7819/77, ECt HR.
220
Diennet v France
(1996) 21 EHRR 554, [1995] ECHR 18160/91, ECt HR.
Easterbrook v UK
(2003) 37 EHRR 812, [2003] ECHR 48015/99, ECt HR.
Ghaidan v Mendoza
[2004] UKHL 30, [2004] 3 All ER 411, [2004] 2 AC 557, [2004] 3 WLR 113.
König v Germany
(1979) 2 EHRR 170, [1978] ECHR 6232/73, ECt HR.
Medicaments and
Related Classes of Goods (No 4), Re [2001] EWCA Civ 1217,
[2002] 1 All ER 853, [2002] 1 WLR 269.
Millar v Dickson
(Procurator Fiscal, Elgin) [2001] UKPC D4, [2002] 3 All ER 1041,
[2002] 1 WLR 1615.
Murray (John)
v UK (1996) 22 EHRR 29, ECt HR.
R v Black (Sonia)
[1997] CA Transcript 2877.
R v Jeffries
[1968] 3 All ER 238, [1969] 1 QB 120, [1968] 3 WLR 830, CA.
R v McDonald (1
May 1998, unreported), CA.
R v Nisbet [1971]
3 All ER 307, [1972] QB 37, [1971] 3 WLR 455, CA.
R v Secretary of
State for the Home Dept, ex p Doody [1993] 3 All ER 92, [1994] 1 AC 531,
[1993] 3 WLR 154, HL.
R v Secretary of
State for the Home Dept, ex p Easterbrook (22 March 1999, unreported), CA.
R (on the
application of Greenfield) v Secretary of State for the Home Dept
[2005] UKHL 14, [2005] 2 All ER 240, [2005] 1 WLR 673.
R (on the
application of Shields) v Crown Court at Liverpool [2001] EWHC Admin
90, [2001] All ER (D) 190 (Jan).
R (on the
application of Ullah) v Special Adjudicator, Do v Secretary of State for
the Home Dept [2004] UKHL 26, [2004] 3 AlL ER 785, [2004] 2 AC 323, [2004]
3 WLR 23.
Taylor v Lawrence
[2002] EWCA Civ 90, [2002] 2 All ER 353, [2003] QB 528, [2002] 3 WLR 640.
W v UK (1988) 10
EHRR 29, [1987] ECHR 9769/82, ECt HR.
Wilson v First County
Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97, [2004] 1 AC 816, [2003] 3 WLR
568.
Appeal
The Secretary of State for the Home Department appealed
with permission of the House of Lords Appeal Committee from the decision of the
Divisional Court (Thomas LJ, Richards and Fulford JJ) on 25 November 2004
([2004] EWHC 2753 (Admin), [2005] 4 All ER 1127), on the application of Ross David
Hammond for judicial review, making a declaration that para 11(1) of Sch 22 to
the Criminal Justice Act 2003 was to be read subject to the implied condition
that the High Court Judge had the discretion to order an oral hearing, where
such hearing was required to comply with the rights under art 6(1) of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 of a prisoner who made an application under para 3 of Sch 22 or whose case
was referred under para 6 of Sch 22. The
facts are set out in the opinion of Lord Bingham of Cornhill.
Jonathan Crow and
Kate Gallafent (instructed by the Treasury Solicitor) for the
Secretary of State.
Edward Fitzgerald QC
and Phillippa Kaufmann (instructed by Bhatt Murphy) for the
respondent.
Their Lordships took time for consideration.
1 December 2005.
The following opinions were delivered.
221
LORD BINGHAM OF CORNHILL.
[1] My Lords, under the procedure which
obtained until 25 November 2002, it was for the Secretary of State for the Home
Department, having received the written recommendation of the trial judge and
the Lord Chief Justice, to determine the length of the punitive term of
imprisonment to be served by an adult convicted of murder in England and Wales. In R (on the application of
Anderson) v Secretary of State for the Home Dept [2002] UKHL 46,
[2002] 4 All ER 1089, [2003] 1 AC 837 this procedure was held to be
incompatible with art 6 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights
Act 1998) (the convention), because determination of the length of a punitive
term is in substance the imposition of sentence, the imposition of sentence
forms part of a criminal trial, art 6 requires a criminal trial to be by an
independent and impartial tribunal, and the Secretary of State is not an
independent and impartial tribunal. This
incompatibility was prospectively cured, with effect from 18 December 2003, by
s 269 of the Criminal Justice Act 2003, which provides that the trial judge
shall (subject to appeal in the ordinary way) determine the minimum term to be
served by an adult murderer in much the same way as he passes sentence on every
other convicted defendant. But there
remained a transitional problem relating to (1) existing prisoners whose
punitive terms had already been notified to them by the Secretary of State by
18 December 2003, (2) existing prisoners sentenced to mandatory life
imprisonment before that date whose punitive terms had not yet been notified to
them, and (3) those sentenced after that date for murders committed before that
date. The respondent falls into the
second of these classes, and challenges the compatibility with art 6 of the
convention of one of the statutory provisions governing determination of the
minimum term which he must serve under the transitional provisions of the 2003
Act. The compatibility of that provision
is the issue in this appeal.
[2] On 10 April 2003 the respondent was
sentenced to life imprisonment on his conviction for murdering a 13-month-old
child. The conviction followed a
contested trial before Judge Fabyan Evans and a jury at Middlesex Guildhall
Crown Court. The evidence disclosed that
the child had been the victim of extreme brutality. At the hearing when sentence was passed,
counsel for the respondent made no effective attempt to mitigate. The judge did not announce the punitive term
he proposed to recommend, but indicated that he would take account of the very young
age of the victim, his view that she had been sexually abused and the age of
the respondent (who was 22). In a
written report dated 19 May 2003 the judge summarised the facts of the case,
and recommended that he serve a punitive term of 25 years. He considered that the victim had suffered
‘ferocious treatment’ at the respondent’s hands and referred to:
‘indications from some
of the available evidence that he has an uncontrollable temper, but that cannot
explain the precision of the cigarette burns or the sexual abuse. He showed no emotion or remorse during the
course of the police investigation, during the trial or after the verdict of
the jury.’
[3] In accordance with the practice adopted
after the Anderson judgment and before commencement of the new statutory
procedure, the Lord Chief Justice made no recommendation on the punitive term
to be served by the respondent and the Secretary of State made no
determination. But in the early months
of 2004, after the new provisions had come into force, steps were taken to
refer the
222
respondent’s case to a judge of the High Court for
determination of the minimum term which he should serve. This determination was to be made, as para
11(1) of the Sch 22 to the 2003 Act on its face requires, on consideration of
the papers (including any written representations of the respondent), without
an oral hearing, but the respondent’s solicitors contended that on the special
facts of his case an oral hearing was essential. They accordingly obtained leave to apply for
judicial review seeking:
‘1. A declaration that
in accordance with section 3 of the Human Rights Act 1988, paragraph 11(1) of
Schedule 22 to the Criminal Justice Act 2003 is to be read subject to an
implied provision that where it is necessary to comply with the existing
prisoner’s rights under article 6(1) of the European Convention on Human
Rights, an oral hearing will be held.
2. In the alternative, a
declaration that paragraph 11(1) of Schedule 22 [to the 2003 Act] is
incompatible with the rights of existing lifers under article 6(1) because it
confers no power for the High Court to hold an oral hearing in the
determination of their minimum term.’
The application came before the Queen’s Bench Divisional
Court (Thomas LJ, Richards and Fulford JJ) which, for reasons given in an
admirably lucid and succinct judgment delivered by Thomas LJ, allowed it and
made a declaration broadly to the effect of the first declaration sought (see
[2004] EWHC 2753 (Admin), [2005] 4 All ER 1127).
THE LEGISLATION
[4] When an adult is convicted of murder in
England and Wales the court must impose a sentence of imprisonment for
life. But the defendant is not, save in
a small minority of cases, ordered to be detained for the rest of his or her
life. Ordinarily, a term of imprisonment
is set, which the defendant must serve to satisfy the requirements of
retribution and general deterrence, the ‘tariff’ or ‘punitive’, now known as
the ‘minimum’, term. Section 269 of the
2003 Act empowers the court, on such a conviction being entered, to determine
the minimum term to be served, or (more rarely) to order that the defendant
shall never be released. Section 276
provides that Sch 22 shall have effect in transitional cases.
[5] In relation to existing prisoners whose
minimum terms had been determined by the Secretary of State and notified to
them before 18 December 2003 (class (1) in [1], above), para 3 of Sch 22
confers a right of application to the High Court for what is in effect a
reconsideration of the Secretary of State’s determination, and if no
application is made that determination stands.
Paragraph 6 of Sch 22 applies to class (2), the class to which the
respondent belongs, and requires the Secretary of State to refer the prisoner’s
case to the High Court for it to determine the earliest time at which the
prisoner shall be entitled to be released, or that he shall never be entitled
to be released. The High Court is not,
by para 8, to order a longer period of detention than, in its opinion, the
Secretary of State would have been likely to notify before December 2002, or to
order that the prisoner shall never be released unless, in its opinion, the
Secretary of State would have been likely to make such an order before December
2002. No detailed reference need be made
to the provisions applicable to prisoners in class (3). Central to this appeal, however, is para
11(1) of Sch 22, which reads: ‘(1) An application under paragraph 3 or a
reference under paragraph 6 is to be determined by a single judge of the High
Court without an oral hearing.’ It is
these last four words which are critical.
223
THE ISSUE
[6] The Secretary of State, through counsel,
accepts that there will be some cases, however few, under para 3 or para 6 of
Sch 22 in which fairness will require that there be an oral hearing before the
minimum term to be served by an existing prisoner is finally determined by the
court. I take this acceptance to
acknowledge that in such cases an opportunity to call evidence, or for the
prisoner to testify, or for his counsel to address the court in mitigation, may
be necessary if the court is to adjudicate fairly. But there is, he submits, nothing in art 6 of
the convention or the Strasbourg jurisprudence on it to suggest that this
opportunity need be afforded before the first instance court. He submits, correctly, that the right of
appeal against sentence conferred by s 9 of the Criminal Appeal Act 1968, as
amended, applies to an order made by the High Court under paras 3 or 6 of Sch
22. He submits, again correctly, that on
any such appeal there will be an oral hearing and s 23 of the 1968 Act
(permitting the Court of Appeal to receive additional evidence if they think it
necessary or expedient in the interests of justice to do so) will apply. On such an appeal, the Court of Appeal will
have the power provided in s 11(3) of the 1968 Act:
‘On an appeal against
sentence the Court of Appeal, if they consider that the appellant should be
sentenced differently for an offence for which he was dealt with by the court
below may—(a) quash any sentence or order which is the subject of the appeal;
and (b) in place of it pass such sentence or make such order as they think
appropriate for the case and as the court below had power to pass or make when
dealing with him for the offence; but the court shall so exercise their powers
under this subsection that, taking the case as a whole, the appellant is not
more severely dealt with on appeal than he was dealt with by the court below.’
The Secretary of State contends that in denying a para 6
(class (2)) existing prisoner an oral hearing at first instance para 11(1) of
Sch 22 is not incompatible with art 6 because such a hearing is available in
the Court of Appeal, and on a correct understanding of the Strasbourg
authorities it is the fairness of the proceedings as a whole which must be
judged. Thus any deficiency at first
instance is remedied on appeal, and there is no incompatibility.
[7] The respondent, through counsel, accepts
that the requirements of fairness will not, in the unusual context of para 3
applications and para 6 references, require an oral hearing in every case. In many of such cases, counsel will have
addressed the trial judge on the length of the punitive term which that judge
should recommend, will have had the opportunity to call evidence at that stage,
will have had the opportunity to address written submissions to the Secretary
of State, and may have nothing to draw to the attention of the High Court judge
making the para 3 or para 6 determination which cannot quite fairly be
considered on paper. But such a determination
is an imposition of sentence, to be regarded as part of the criminal
trial. A criminal trial is, in all save
unusual circumstances, required by art 6 of the convention to be held in
public, with the defendant present and having the opportunity, through his
legal representative or himself if appearing in person, to call evidence and
make submissions relevant to the issue to be decided. In some para 3 applications and para 6
references, however small the minority of cases, fairness will require that
such an opportunity be granted at first instance, and para 11(1) of Sch 22 is
incompatible with art 6 in denying that opportunity in all cases, including
those where fairness does require such a procedure. This incompatibility is not remedied by the
224
possibility of appeal, since an appeal lies only with
the leave of the Court of Appeal (see s 11(1) of the 1968 Act) or a certificate
of the judge who passed sentence (s 11(1A)), and leave would or might not be
granted if the Court of Appeal considered, on the material before it, that the
minimum term set by the High Court judge was not manifestly excessive or if the
High Court judge did not recognise that fairness required an oral hearing. In any event, the Court of Appeal could not
quash the High Court judge’s decision on the ground that there had been no oral
hearing, and the prisoner would lose the opportunity, which should be open, of
an oral hearing before the judge and the Court of Appeal. The respondent does not accept that the
incompatibility of para 11(1) of Sch 22 can be remedied by an oral hearing in
the Court of Appeal, even if the European Court of Human Rights, viewing the
proceedings overall and in retrospect, might hold that there had been no
violation of art 6.
[8] In the present application, the courts
have not been asked to consider whether the respondent’s is one of those rare
cases in which fairness will require an oral hearing. That is a question to be considered in the
future, by the High Court or the Court of Appeal, or both, depending on the
outcome of the appeal.
THE EUROPEAN CONVENTION AND THE AUTHORITIES
[9] The issue before the House turns wholly on
the interpretation and application of art 6.
Paragraph 11(1) of Sch 22 is not ambiguous or unclear. It stipulates that on a determination under
para 3 or para 6 the High Court judge must act without an oral hearing. But for the convention there would be no
escape from that provision, even if it operated unfairly. So the solution to the problem before the
House must be found in the convention and the authorities on it.
[10] Article 6 is entitled ‘Right to a fair
trial’, and provides (so far as material for present purposes):
‘1. In the determination
of his civil rights and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law …
3. Everyone charged with
a criminal offence has the following minimum rights … (c) to defend himself in
person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require; (d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him; (e) to have the free
assistance of an interpreter if he cannot understand or speak the language used
in court.’
The article guarantees a fair trial to a defendant on the
determination of a criminal charge against him or to a party whose civil rights
and obligations are to be determined.
This is a right which member states undertake to secure to everyone
within their jurisdiction. The
requirements particularised in art 6(3) are standard conditions of a fair
trial, but they are not in themselves absolute: while the overall fairness of a
trial cannot be compromised, the constituent rights within art 6 are
susceptible to limited qualification in some circumstances: see Brown v
Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 at
104–105, 115, [2003] 1 AC 681 at 693, 704, and the authority cited [2001] 2 All
ER 97 at 105–113, [2003] 1 AC 681 at 693–702.
The European Court of Human Rights for its part
225
assesses the fairness of proceedings in national
jurisdictions retrospectively, since applicants are required to exhaust their
national remedies before resorting to it, and the court repeatedly asserts and
follows the practice of making its assessment on an overall consideration of
the national proceedings, viewed as a whole (see, among many examples, Edwards
v UK (1992) 15 EHRR 417 at 431 (paras 33–34); Miailhe v France (No
2) (1997) 23 EHRR 491 at 511 (para 43); Rowe v UK (2000) 8 BHRC 325
at 342 (para 59)). Thus the court will
assess the overall fairness of the national proceedings viewed as a whole, but
will not undertake the task before the House in this appeal, of deciding
whether a provision of national legislation is compatible with art 6. This was made clear in Adolf v Austria
(1982) 4 EHRR 313 at 324–325 (para 36), where the court, citing Guzzardi v
Italy (1980) 3 EHRR 333 at 361 (para 88), and X v UK (1981) 4 EHRR
188 at 202 (para 41) said:
‘As to whether section
42 of the Penal Code is in itself compatible with the Convention, the Court
would recall its established case-law:
“in proceedings originating in an individual
application, [the Court] has to confine its attention, as far as possible, to
the issues raised by the concrete case before it.”
Accordingly, the Court’s
task is not to review in abstracto under the Convention the provision of
domestic law challenged by Mr. Adolf but to review the manner in which that
provision was applied to him.’
If, however, as in Twalib v Greece (2001) 33 EHRR
584 at 607–609 (paras 52–57) a specific feature is found to be a necessary
condition of the fairness of a proceeding and national law precludes fulfilment
of that condition, a finding of violation will follow and the inference must be
drawn that the national law which precludes fulfilment of the condition is
incompatible with art 6.
[11] In defining the autonomous meaning, for
convention purposes, of ‘civil rights and obligations’ in art 6(1), the court
has chosen to give the expression a broad meaning, so as to embrace some
administrative and disciplinary decisions.
This has the consequence that decisions in fields such as this are
routinely made in the first instance by bodies that do not have and are not
intended to have the independence and impartiality to be expected of a judicial
tribunal as required by art 6(1). This
was, it would seem, true of the Provincial Councils considered in Le Compte
v Belgium (1981) 4 EHRR 1 and Albert v Belgium (1983) 5 EHRR 533, of
the Social Insurance Office which featured in Döry v Sweden App No
28394/95 (12 February 2003, unreported), of the planning authorities whose
decisions were challenged in R (on the application of Alconbury
Developments Ltd) v Secretary of State for the Environment, Transport
and the Regions [2001] UKHL 23, [2001] 2 All ER 929, [2003] 2 AC 295 and of
the rehousing manager who featured in Runa Begum v Tower Hamlets London BC [2003]
UKHL 5, [2003] 1 All ER 731, [2003] 2 AC 430.
The court has not, however, held that the making of an initial decision
by a body which does not meet convention standards of independence and
impartiality necessarily taints or invalidates the further stages of decision
making consequent on that initial decision (see Le Compte v Belgium
(1981) 4 EHRR 1 at 19 (para 51(a))).
But, as it was put in Albert v Belgium (1983) 5 EHRR 533 at 542
(para 29):
‘in such circumstances
the Convention calls at least for one of the two following systems: either the
jurisdictional organs themselves comply with the requirements of Article 6(1),
or they do not so comply but are subject to
226
subsequent control by a
judicial body that has full jurisdiction and does provide the guarantees of
Article 6(1).’
Thus, in cases such as Le Compte v Belgium and
Albert v Belgium much of the argument turned on whether the Belgian Court
of Cassation had the competence and provided the guarantees necessary to remedy
deficiencies at lower levels.
[12] The court has distinguished between
bodies making administrative and disciplinary decisions of the character just
considered and what it has called ‘courts of the classic kind’, ‘integrated
within the standard judicial machinery of the country’, and has described a
criminal court as ‘a proper court in both the formal and the substantive
meaning of the term’ (see De Cubber v Belgium (1985) 7 EHRR 236 at 248
(para 32)). Such a court must be
independent (see Findlay v UK (1997) 24 EHRR 221) and it must be, and
appear to be, impartial, in the subjective and objective senses defined by the
court (see De Cubber v Belgium (1985) 7 EHRR 236 at 243–246 (paras
24–30)). The court has given guidance on
some of the main constituent elements of a fair criminal trial. Thus, in Colozza v Italy (1985) 7 EHRR
516 at 523 (para 27) it said that:
‘the object and purpose
of [art 6] taken as a whole show that a person “charged with a criminal
offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of
paragraph (3) guarantee to “everyone charged with a criminal offence” the right
“to defend himself in person”, “to examine or have examined witnesses” and “to
have the free assistance of an interpreter if he cannot understand or speak the
language used in court”, and it is difficult to see how he could exercise these
rights without being present.’
An adversarial procedure, with equality of arms and proper
disclosure between prosecution and defence, has similarly been seen as
fundamental to the fairness of a criminal trial (see IJL v UK (2000) 9
BHRC 222 at 245 (para 112)).
[13] In non-criminal cases such as Le Compte
v Belgium and Albert v Belgium, above, the court has attached
very considerable importance to the art 6 requirement that the hearing be in
public. In criminal cases this
requirement is no less important. In
Riepan v Austria [2000] ECHR 35115/97 (para 27) the court reiterated: ‘that
the holding of court hearings in public constitutes a fundamental principle
enshrined in para 1 of art 6.’ Just as
criminal trials of the classic kind must be before independent and impartial
tribunals (see De Cubber v Belgium (1985) 7 EHRR 236 at 248–249 (paras
32–33); Findlay v UK (1997) 24 EHRR 221 at 246 (para 79)), so do they
require ‘the same kind of fundamental guarantee in the form of publicity’ (Riepan
v Austria [2000] ECHR 35115/97 (para 40)).
The court has held that the entitlement to a public hearing ordinarily
implies a right to an oral hearing (see Göç v Turkey [2002] ECHR
36590/97 (para 47); Döry v Sweden App No 28394/95 (12 February 2003,
unreported) (para 37)), although this is a right which may be waived and there
may be exceptional circumstances that justify dispensing with such a hearing
(ibid). According to the dissenting
minority in Göç’s case, the court’s case law lays down three criteria
for determining whether there are ‘exceptional circumstances’ which justify
dispensing with a public hearing: ‘there must be no factual or legal issue
which requires a hearing; the questions
which the court is required to answer must be limited in scope and no public
interest must be at stake.’ Article 6(1)
primarily concerns courts of first instance (De Cubber v Belgium (1985)
7 EHRR 236 at 248 (para 32)), and it is clearly applicable to the imposition of
sentence (Findlay v UK (1997) 24 EHRR 221 at 243
227
(para 69)).
The convention jurisprudence would appear to support the respondent’s
contention that an oral hearing should, where fairness requires it, be held
before a minimum term is set for an existing prisoner such as the respondent,
and thus to show that para 11(1) of Sch 22 is incompatible with the convention.
[14] As in the administrative and disciplinary
cases considered above, however, the court, reviewing the overall fairness of
the proceedings in question, has not held that a violation of an art 6
requirement at an early stage of criminal proceedings is necessarily
irremediable. In Adolf v Austria
(1982) 4 EHRR 313 the presumption of the applicant’s innocence was infringed by
a lower court, but this was held to be fully remedied by the decision of a
higher court. In Edwards v UK
(1992) 15 EHRR 417 the prosecution failed to make proper disclosure at trial,
but its failure was remedied by a full hearing in the Court of Appeal. As it was put in Kyprianou v Cyprus
[2004] ECHR 73797/01 (para 43): ‘it is possible for a higher tribunal, in
certain circumstances, to make reparation for an initial violation of the
Convention …’
[15] The circumstances in which a higher
tribunal may make reparation for an initial violation of the convention at a
lower level have been identified by the court in a number of cases. Thus in De Cubber v Belgium (1985) 7
EHRR 236 the defect related to the impartiality of the first instance court and
it was held (at 249 (para 33)) that: ‘the Court of Appeal did not cure that
defect since it did not quash on that ground the judgment of 29 June 1979 in
its entirety.’ In Colozza v Italy
(1985) 7 EHRR 516 at 525 (paras 31–32) the convention was violated by a court’s
trial of the applicant in his absence without notice to him, and this was never
redressed by the higher courts since his case ‘was at the end of the day never
heard, in his presence, by a “tribunal” which was competent to determine all
the aspects of the matter’. In
Findlay v UK (1997) 24 EHRR 221 at 246 (para 79), the court-martial’s lack
of independence could not be corrected by any subsequent review
proceedings. It was noted in Twalib v
Greece (2001) 33 EHRR 584 at 604 (para 40) that there were ‘serious
shortcomings in the fairness of the proceedings at first instance’, which were
partly remedied on appeal, but not wholly, since the applicant was obliged to
be legally represented in the Court of Cassation, he had no means to pay for
legal representation and legal aid was unavailable. In Rowe v UK (2000) 8 BHRC 325, unlike
Edwards v UK (1992) 15 EHRR 417, a prosecution failure to make full
disclosure at trial was not remedied by review in the Court of Appeal, which
lacked the trial judge’s ability to assess and monitor the evidence. It was held in Riepan v Austria that
the lack of publicity at first instance could not be remedied by anything less
than a complete re-hearing before the appellate court, which had not
occurred. In Condron v UK (2001)
8 BHRC 290, a trial judge’s failure to direct the jury adequately on the
drawing of inferences from the applicants’ silence was not remedied by a
subsequent hearing in the Court of Appeal: the Court of Appeal was concerned
with the safety of the applicants’ convictions, not with whether they had in
the circumstances received a fair trial, and—
‘[i]n the court’s
opinion, the question whether or not the rights of the defence guaranteed to an
accused under art 6 of the convention were secured in any given case cannot be
assimilated to a finding that his conviction was safe in the absence of any
enquiry into the issue of fairness.’
(See (2001) 8 BHRC 290 at 306 (para 65).)
228
In Kyprianou v Cyprus [2004] ECHR 73797/01, where
the applicant’s complaint related to the independence and impartiality of the
first instance court, the defect was not remedied by review of the decision by
the Supreme Court. It was held (para
44):
‘There was no retrial of
the case by the Supreme Court. As a
court of appeal, the Supreme Court did not have full competence to deal de novo
with the case, but could only review the first instance judgment for possible
legal or manifest factual errors. It did
not carry out an ab initio, independent determination of the criminal charge
against the applicant for contempt of the Assize Court. Furthermore, the Supreme Court found that it
could not interfere with the judgment of the Assize Court, accepting that that
court had a margin of appreciation in imposing a sentence on the applicant.’
[16] It is plain beyond argument that the
imposition of sentence at first instance is part of a criminal trial and ought
in any ordinary case to take place in public at a hearing at which the
defendant is present and represented and able to participate. That is a basic condition of fairness. I am prepared to accept, in agreement with
counsel and the Divisional Court, that in the unique situation addressed by
paras 3 and 6 of Sch 22, fairness will not, in many cases, require an oral
hearing, to which many existing prisoners may in any event waive their
right. In those cases where fairness
does require an oral hearing, however, and the respondent’s case may or may not
be one such, it seems to me that para 11(1), in precluding the possibility of
an oral hearing at first instance, is incompatible with the convention. I would accept that there might be cases in
which the court, reviewing the course of proceedings retrospectively to assess
their overall fairness, might hold that a hearing in the Court of Appeal had
remedied the lack of an oral hearing at first instance and that there had, in
the event, been no violation. But even
if that were an inevitable result I doubt if it would entitle one to regard
para 11(1) as compatible, and in my view there are a number of reasons why such
a result is by no means inevitable.
Firstly, there would be no oral hearing at all unless leave to appeal were
granted, and it might or might not be granted.
Secondly, the ordinary grounds for granting leave to appeal against
sentence are that a sentence is manifestly excessive or wrong in principle. It must be very doubtful, given the express
terms of para 11(1), that leave could or would be given on the ground that
denial of an oral hearing was unfair.
Thirdly, the Court of Appeal would be concerned to resolve whether the
term imposed by the judge was manifestly excessive or wrong in principle. It would not focus its attention on the
fairness of the procedure, mandated by statute, by which the term had been
determined. It could not quash the
determination on grounds of unfairness, nor remit the case to a High Court judge
with jurisdiction to remedy the previous unfairness by holding an oral
hearing. Fourthly, the function of the
Court of Appeal on hearing sentence appeals is not to conduct a hearing de
novo. It is a court of review. It gives weight to the order made at first
instance, and substitutes its own decision only if persuaded that the first
instance decision is erroneous to a significant extent. Fifthly, the prisoner loses what the
convention, combined with domestic law, should afford him: an oral hearing before
the term is determined and the opportunity, if arguable grounds of appeal are
shown, to challenge that determination at an oral appellate hearing. Where a prisoner faces the prospect of
imprisonment for the whole of his life (Sch 21 to the 2003 Act, para 4(1)) or
for a very lengthy period (para 5(1)) and fairness requires an oral hearing,
this is not an entitlement of which he should be lightly deprived.
229
[17] I agree with the Divisional Court that
para 11(1) is incompatible with the convention.
The Secretary of State expressly accepted that, if the House reached
that conclusion, para 11(1) should be read subject to an implied condition that
the High Court judge has the discretion to order an oral hearing, where such
hearing is required to comply with a prisoner’s rights under art 6(1) of the
convention. Thus the discretion may be
exercised when, and only when, an oral hearing is necessary to meet the
requirement of fairness. Thus no
argument was addressed to the scope of the interpretative duty imposed by s 3
of the 1998 Act, and it is unnecessary to form an opinion whether the
Divisional Court’s interpolation, if challenged, would be sustainable.
[18] For these reasons, and those given by my
noble and learned friends Lord Hoffmann and Lord Brown of Eaton-under-Heywood,
I would dismiss this appeal.
LORD HOFFMANN.
[19] My Lords, in R (on the
application of Anderson) v Secretary of State for the Home Dept
[2002] UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC 837 this House decided that
the law by which the Home Secretary had the power to determine the minimum
period of a mandatory life sentence which had to be served before a prisoner
was eligible for release on licence was incompatible with the principle of the
separation of powers as expressed in art 6 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998). In response to this
decision, Parliament passed s 269 of the Criminal Justice Act 2003 which, in
respect of offences committed on or after the date upon which it came into
force (18 December 2003), transferred the power to the trial judge.
[20] Schedule 22 to the 2003 Act contains
transitional provisions for prisoners who had committed offences before the
commencement date for which, on conviction, they were liable to a mandatory
life sentence. They fall into three
categories: (1) those whose minimum periods had already been fixed and notified
to them by the Home Secretary, (2) those who had been sentenced but not yet
notified of their minimum periods, (3) those who had not yet been
sentenced. This appeal is concerned with
the second category.
[21] Paragraph 6 of the schedule requires that
in the case of a prisoner in the second category, the Home Secretary must refer
his case to the High Court to fix the minimum period. Thus the new procedure satisfies the
principle of the separation of powers which was infringed in Anderson’s
case. But para 11 of the schedule
provides that the reference is to be determined ‘by a single judge of the High
Court without an oral hearing’. The
question in this appeal is whether this procedure does not infringe another
requirement of justice, namely that it should be done in public.
[22] Anderson’s case decided that the
determination of the minimum period forms part of the process of
sentencing. That is why it is a matter
for the judicial rather than the executive branch of government. The same reasoning leads to the conclusion
that it is part of the trial and that the accused is prima facie entitled to a
public hearing not only on the question of his guilt or innocence but also,
when convicted, on the determination of his sentence. I say prima facie because it is accepted
there may be exceptional cases in which no public hearing is required. Cases of references under para 6 will often
be exceptional in this way because there may already have been an opportunity
for the prisoner’s counsel to address the judge in mitigation before he
recommended a minimum term to
230
the Home Secretary and a further oral hearing would serve
no purpose. But Mr Crow, who appeared on
behalf of the Home Secretary, accepted that there could be cases in which
justice required an oral hearing but para 11(1) did not allow it.
[23] Mr Crow submits, however, that the
absence of an oral hearing before the determination of sentence can be put
right by an appeal. If the prisoner
appeals against the length of the minimum sentence, he will be given an oral
hearing in the Court of Appeal. The
court will even be able to allow him to adduce fresh evidence if it considers
it appropriate to do so. In that way he
will achieve an oral hearing and, taking the proceedings before the judge and
the Court of Appeal together, he will have had a public hearing before his sentence
is finally determined. This, says Mr
Crow, should satisfy the Strasbourg court that United Kingdom law complies with
art 6.
[24] The Divisional Court did not think that
this was right and nor do I. The hearing
before the judge and the hearing in the Court of Appeal have different functions. The function of the judge is to determine the
minimum period. The function of the
Court of Appeal is to decide whether the sentence was one which the judge could
lawfully and properly impose. In the
case of a prisoner who says that justice demanded that his minimum period
should not have been fixed without an oral hearing, his complaint is not
primarily that the judge has imposed too long a sentence. He is saying that the judge should not have
imposed any sentence without giving him an oral hearing. No doubt he hoped that if there had been an
oral hearing, he would have been given a shorter sentence. But his challenge is to the procedure and not
to the substantive decision. If this
complaint is a good one, it is hard to see how matters can be mended by the
fact that the prisoner had an oral hearing in the Court of Appeal. The only way to give him the hearing to which
he was entitled would be to remit the matter for an oral hearing before the
judge. But that would be precluded by
para 11(1) and in any case the Court of Appeal has no power to remit the
question of sentence to the judge.
[25] Such a conclusion seems to me in
accordance with the Strasbourg jurisprudence.
In Riepan v Austria [2000] ECHR 35115/97 the applicant had been
convicted of a criminal offence at a private hearing within the prison in which
he was serving a sentence for earlier crimes.
He appealed to the Court of Appeal, where a public hearing took place
but his appeal was dismissed. The
European Court of Human Rights said (para 40) that it had in earlier decisions
rejected the submission that in ordinary criminal proceedings a defect at first
instance in the ‘tribunal’s “independence and impartiality”’ could be remedied
at a later stage (see De Cubber v Belgium (1985) 7 EHRR 236; Findlay
v UK (1997) 24 EHRR 221). The
accused was entitled to ‘a first instance tribunal that fully met the
requirements of art 6(1)’. It went on to
say:
‘The court considers
that a normal criminal trial requires the same kind of fundamental guarantee in
the form of publicity. As stated above,
by rendering the administration of justice transparent, the public character of
a criminal trial serves to maintain confidence in the courts and contributes to
the achievement of the aim of art 6(1), namely a fair trial. To this end, all the evidence should, in
principle, be produced in the presence of the accused at a public hearing with
a view to adversarial argument … Given the possible detrimental effects that
the lack of a public hearing before the trial court could have on the fairness
of the proceedings, the absence of publicity could
231
not in any event be
remedied by anything other than a complete re-hearing before the appeal court.’
[26] This case is in my opinion a rejection of
Mr Crow’s submission. It is necessary,
however, to distinguish two lines of the authority in which the Strasbourg
court has held that deficiencies in the trial process may be remedied by the
proceedings on appeal. The first
concerns cases in which the irregularities at the trial have not related to
fundamental questions such as the impartiality of the tribunal or the public
character of the hearing but rather to matters affecting the accuracy of the
decision. Thus in Edwards v UK
(1992) 15 EHRR 417 the prosecution had failed to disclose to the applicant,
before his trial and conviction for robbery and burglary, that the fingerprints
of a neighbour had been found at the premises and that one of the victims who
had caught a fleeting glimpse of the burglar had then failed to identify him in
an album of police photographs. The
Court of Appeal said that there had been some ‘slipshod police work’ but that
it was satisfied that disclosure would have made no difference to the outcome
and that the convictions were safe. The
Strasbourg court said that although there had been a defect in the trial
proceedings, it was remedied by the subsequent procedure in the Court of
Appeal. The Court of Appeal made a fair
examination of whether the non-disclosure had mattered and came to the conclusion
that it did not. Such a case is
obviously very different from one in which the first instance procedure is
fundamentally flawed.
[27] The other cases which must be
distinguished are those in which art 6 has been held to apply to administrative
and disciplinary decisions. The
doctrinal peculiarities of this jurisprudence have been discussed in R (on
the application of Alconbury Developments Ltd) v Secretary of State for
the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 All ER
929, [2003] 2 AC 295 and Runa Begum v Tower Hamlets London BC [2003]
UKHL 5, [2003] 1 All ER 731, [2003] 2 AC 430.
They arise from the fact that although one of the main purposes of art 6
is to maintain the principle of the separation of powers and the basic principles
of justice which must be observed by the judicial branch of government, the
Strasbourg court has held the article applicable to executive and domestic
decisions as well. The position which
the court has now reached could be equally well expressed by saying that
executive and domestic decisions are not subject to art 6 but that (1)
there must be adequate judicial review of such decisions and (2) art 6 applies
to the proceedings for judicial review.
This is not, however, the way the court has chosen to express
itself. It says that, in principle,
administrative and disciplinary decisions are subject to art 6, but that
the most fundamental requirements of art 6 may be omitted (such as the
impartiality of the tribunal and the public nature of the hearing) provided
that (1) there is adequate judicial review and (2) the proceedings for judicial
review comply with art 6. Mr Crow is
therefore right to say that in these cases a right of appeal or review can make
up for a fundamental failure of the first decision maker to comply with art
6. But this doctrine is confined to
administrative and disciplinary cases in which the principle of the separation
of powers does not require the decision to be made by the judicial branch of
government. It has no application to
what the European Court of Human Rights in Riepan v Austria [2000] ECHR
35115/97 (para 40) called ‘proceedings before courts of a classic kind’.
[28] There is one more curious feature of the
Strasbourg jurisprudence to which I would draw attention. The court has always held that the terms
‘determination of … civil rights and obligations’ or of a ‘criminal charge’
have an
232
‘autonomous’ meaning applicable to all member states,
whether or not the domestic law would regard the proceedings as falling within
one or other of those descriptions. But
in De Cubber v Belgium (1985) 7 EHRR 236 at 248 (para 32) the court
appeared to be saying that the question of whether art 6 applied with full
force or in the attenuated form in which it is applied to administrative
decisions or domestic tribunals depends upon whether the domestic law would
regard the case as ordinary civil or criminal proceedings appropriate for
decision by the judicial branch of government.
This criterion has been repeated in subsequent cases (see, for example, Riepan
v Austria [2000] ECHR 35115/97 (para 40)).
But I must respectfully say that I find it illogical to look to domestic
law on this point. The preservation of
the principle of the separation of powers is a fundamental purpose of art 6 and
it would be strange if a member state could avoid the full requirements
applicable to ‘classic’ judicial proceedings by characterising the relevant
decision in domestic law as ‘administrative’.
The questions of whether art 6 applies in full strength, in attenuated
form, or not at all, should each receive answers founded on autonomous
principles.
[29] It follows that para 11(1), in excluding
the possibility of an oral hearing, is incompatible with Convention
rights. The Divisional Court decided
that the incompatibility could be removed by construing the subparagraph,
pursuant to s 3 of the 1998 Act, to be subject to an implied qualification
which gives the High Court a discretion to order an oral hearing when this is
necessary to satisfy the prisoner’s rights under art 6. Neither side challenged this proposition and
your Lordships are therefore not asked to decide whether such a bold exercise
in ‘interpretation’ is permissible. For
these reasons, as well as those of my noble and learned friends, Lord Bingham
of Cornhill and Lord Brown of Eaton-under-Heywood, I would dismiss the appeal.
LORD RODGER OF EARLSFERRY.
[30] My Lords, I agree with my noble and
learned friends that, for the reasons that they give, the appeal should be
dismissed. Since the point was not
argued, however, I am not to be taken as holding that s 3 of the Human Rights
Act 1998 was warrant for the interpretation of para 11(1) of Sch 22 to the
Criminal Justice Act 2003 adopted by the Divisional Court.
[31] In terms of art 6(1) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as
set out in Sch 1 to the 1998 Act) a state party guarantees that, in the
determination of any criminal charge against him, everyone is entitled to a
fair and public hearing by an independent and impartial tribunal ‘as a matter
of fairness’ (see Monnell v UK (1988) 10 EHRR 205 at 225 (para
67)). It is the right to the public
hearing that involves the right to an oral hearing. The Secretary of State accepts that the
guarantee applies to the determination and imposition of sentence. This is hardly surprising since sentencing in
secret is one of the most obvious and dangerous abuses that art 6 is designed
to root out. So ‘Article 6(1) concerns
primarily courts of first instance’ (De Cubber v Belgium (1985) 7 EHRR
236 at 248 (para 32)) and in a normal criminal case the accused is entitled to
a first instance tribunal that fully meets the requirements of art 6(1) in the
form of publicity (Riepan v Austria [2000] ECHR 35115/97 (para
40)). The Secretary of State’s argument
that the lack of an oral hearing in a first instance criminal trial can be made
good by an appeal hearing in public must therefore be rejected as inconsistent
with both principle and authority.
233
[32] It appears that the respondent is
actually now seeking to pursue an appeal against conviction. But at the stage when the case was heard by
the Divisional Court he had indicated that he would wish the High Court judge,
when setting the minimum term, to consider evidence, including his own oral
evidence, about his involvement in the killing of which he had been convicted,
since at the trial he had denied any such involvement. The predicament of an accused who has denied
being involved in the offence before the jury return their verdict but then
wishes to advance submissions about the circumstances in mitigation of sentence
is unenviable but not unfamiliar.
Perhaps because the respondent said that he wished to lead evidence, in
the hearing of the appeal frequent reference was made to an oral hearing as an
opportunity for witnesses to give oral evidence and, indeed, to the possibility
of the Court of Appeal hearing such evidence.
In the British system oral evidence is, of course, at the forefront, but
in other systems to which art 6 applies it plays a less prominent role. Nor is art 6 concerned with the form of the
evidence, but rather with securing that the procedure is ‘adversarial’ in the
sense that the evidence should be produced in the presence of the accused at a
public hearing ‘with a view to adversarial argument’ (see Riepan v Austria
(para 40)). In other words, the defence
should have the opportunity at a public hearing to put the accused’s position
and to challenge the evidence advanced against him.
[33] Although the guarantee of a public
hearing in art 6(1) is extremely important, the European Court of Human Rights
has recognised that exceptional circumstances may justify dispensing with
it. In Göç v Turkey [2002] ECHR
36590/97, the dissenting judges noted three criteria: there must be no factual
or legal issue which requires a hearing; the questions which the court is
required to answer must be limited in scope and no public interest must be at
stake. None of the cases on which the
judges based this useful summary involved criminal proceedings and Göç’s
case itself involved civil proceedings within the meaning of art 6(1). Lord Hope of Craighead referred to the
summary in R (on the application of Dudson) v Secretary of
State for the Home Dept [2005] UKHL 52 at [30], [2005] 3 WLR 422 at [30],
when deciding that it was not necessary for there to be an oral hearing when
the Lord Chief Justice was reviewing the minimum term previously ordered by the
Secretary of State in a case where the claimant had been sentenced to be
detained during Her Majesty’s pleasure.
Both my noble and learned friend, Lord Bingham of Cornhill (at [2]), and
Lord Hope (at [34]), were at pains to stress that the operation on which the Lord
Chief Justice had been engaged was very different from sentencing at first
instance. There is nothing in the cases
to suggest that such exceptional circumstances have so far been found to exist
in first instance criminal proceedings.
This is presumably because such proceedings will, more often than not,
involve disputed factual or legal issues and the public interest will generally
be at stake. But the Divisional Court
has explained all the reasons why the circumstances in which the High Court
judge is called on to fix the minimum period in cases like the present make
this too a very unusual exercise.
Moreover, counsel for the respondent accepted that in many cases of this
kind an oral hearing would not be required.
It is, however, unnecessary to explore the matter further since the
House is affirming the declaration of the Divisional Court that the High Court
judge has the discretion to order an oral hearing where such a hearing is
required to comply with art 6(1)—in other words, whenever fairness requires.
[34] I would comment on one other matter which
surfaced during the hearing. Read
without the benefit of the Divisional Court’s gloss, para 11(1) of
234
Sch 22 would prevent the judge from holding an oral
hearing. It is this statutory bar which
means that the guarantee in art 6(1) is violated, since in such a system the
prisoner is not ‘entitled’ to an oral hearing.
Resort has therefore to be had to the 1998 Act. Where, however, the legislation permits a judge
to hold an oral hearing, the prisoner is ‘entitled’ to that hearing in an appropriate
case and the guarantee is given effect.
If, in that situation, a judge wrongly declines to hold an oral hearing,
the guarantee in art 6(1) operates by the Court of Appeal quashing the relevant
proceedings on the ground of the judge’s erroneous decision and holding as full
a hearing as is necessary to do justice in the circumstances. I respectfully agree with what my noble and
learned friend, Lord Brown of Eaton-under-Heywood, is going to say on this matter.
LORD CARSWELL.
[35] My Lords, I have had the advantage of
reading in draft the opinions prepared by my noble and learned friends Lord
Bingham of Cornhill, Lord Hoffmann and Lord Brown of Eaton-under-Heywood. I agree with their reasons and conclusions and
for those reasons I too would dismiss the appeal.
LORD BROWN OF EATON-UNDER-HEYWOOD.
[36] My Lords, I have had the advantage of
reading in draft the speech of my noble and learned friend Lord Bingham of
Cornhill. I agree with him that this
appeal should be dismissed and there is comparatively little that I wish to
add.
[37] The central issue raised on the appeal is
whether para 11(1) of Sch 22 to the Criminal Justice Act 2003, a provision
which on its face denies the sentencing judge any possibility of an oral
hearing even when he considers this essential for the fair determination of a
mandatory life prisoner’s minimum term, is compatible with the prisoner’s right
to a fair trial, more particularly to ‘a fair and public hearing’, under art 6
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). It is the Crown’s somewhat surprising
contention that it is, a contention founded on the proposition that the
prisoner in such a case will obtain his fair and public hearing when he appeals
to the Criminal Division of the Court of Appeal. Such an appeal, submits Mr Crow, whether it
is analysed as curing an initial violation of art 6 or as averting such a
violation in the first place, ensures that the proceedings as a whole are to be
regarded as fair and public and thus compliant with the convention. Certainly, he submits, following an appeal
the prisoner would have no sustainable complaint before the European Court of
Human Rights (ECtHR).
[38] In examining this argument it is
necessary to put aside the thought that an oral hearing (particularly one at
which evidence is adduced) before the sentencing judge would plainly be
altogether more convenient and cost-effective than such a hearing before the
Court of Appeal: expediency and compatibility, Mr Crow reminds us, are two
different things. I put aside too a
number of possible difficulties in the prospective appellant’s path: the need
for leave to appeal, the need to persuade the Court of Appeal that oral
evidence is ‘necessary or expedient in the interests of justice’ within the
meaning of s 23(1) of the Criminal Appeal Act 1968, and the burden of
satisfying the Court of Appeal that the minimum term fixed by the sentencing
judge was manifestly excessive.
[39] The root question arising is whether or
not, assuming the prisoner can indeed be assured of a full, fair and public
hearing leading to a just sentence (minimum term) on appeal, an inability to
secure such a hearing at first instance
235
would be incompatible with the convention. It is, of course, only if a legislative bar
on the sentencing judge’s power to hold an oral hearing would be incompatible
with the prisoner’s Convention rights that s 3 of the 1998 Act could be invoked,
in the manner agreed by both parties to be possible if required, to avoid such
incompatibility.
[40] In examining the Strasbourg jurisprudence
it is necessary to bear in mind that the only concern of the ECtHR is to decide
whether, having regard to whatever domestic proceedings there may have been,
the complainant is the victim of an unremedied violation of a Convention
right. Before even one comes to consider
the extensive case law on art 6, three other convention articles should be
noted (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969): art 13 which requires
that ‘Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority’, art 34
which allows the court to receive applications from anyone ‘claiming to be the
victim of a violation’, and art 35(1) which provides that ‘The Court may only
deal with the matter after all domestic remedies have been exhausted’. Provided that the national courts have
remedied any violation (certainly where they have at the same time acknowledged
that there has been a violation of the convention) the court is unlikely even
to regard the complainant as a victim.
It is hardly surprising, therefore, that, when one comes to consider the
art 6 case law, one finds a certain looseness of expression and perhaps even
some apparent inconsistency of approach as to whether, in those applications to
Strasbourg which have failed, that is because the domestic appeal process is
found to have avoided a convention violation or merely to have remedied it.
[41] It is now clear that, so far as
administrative or disciplinary tribunals are concerned, there is compliance
with art 6 so long as the requisite guarantees (of an independent and impartial
tribunal, a fair and public hearing and the like) are provided, if not at the
initial decision-making stage, then on a subsequent review or appeal (by a
tribunal with the jurisdiction to undertake a sufficient merits hearing)—see,
for example, Albert v Belgium (1983) 5 EHRR 533 and, domestically, R (on
the application of Alconbury Developments Ltd) v Secretary of State for
the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 All ER
929, [2003] 2 AC 295 and Runa Begum v Tower Hamlets London BC [2003]
UKHL 5, [2003] 1 All ER 731, [2003] 2 AC 430.
[42] With regard, however, to ‘courts of the
classic kind … within the standard judicial machinery of the country’ (see
De Cubber v Belgium (1985) 7 EHRR 236 at 248 (para 32)) the circumstances
in which the basic ingredients of a fair trial guaranteed by art 6, if lacking
at first instance, will thereafter be found sufficiently provided instead in
subsequent proceedings is less clear.
There are many considerations in play.
If the first instance court was lacking in independence or impartiality,
Findlay v UK (1997) 24 EHRR 221 suggests that that defect may be quite
simply irremediable. In other cases much
will depend on whether the appeal constitutes a complete rehearing or is
otherwise capable of providing full redress for whatever deficiencies were
found in the proceedings below.
[43] For the reason already given, moreover,
even when a subsequent appeal is found to have made good any
deficiencies in the initial court proceedings, it is often unclear whether, in
finally concluding that art 6 has not been breached, the court is finding an
initial violation to have been remedied or is holding rather that art 6 allows
for deficiencies at first instance providing always that they are remedied on
appeal. Some of the Strasbourg judgments
talk in terms of the subsequent procedure remedying ‘defects’ (for example, Edwards
v UK (1992)
236
15 EHRR 417 at 432 (para 39)) or ‘serious
shortcomings’ (Twalib v Greece (2001) 33 EHRR 584 at 604 (para 40)) in
the original trial. Others, however,
notably cases where the court is rejecting the state’s contention that
the defects have been remedied and is finding a breach of art 6 (as in De
Cubber’s case itself, Colozza v Italy (1985) 7 EHRR 516 and
Kyprianou v Cyprus [2004] ECHR 73797/01, the language is that of making
reparation for an initial violation of the convention. Take this, for example, from De Cubber v
Belgium (1985) 7 EHRR 236 at 249 (para 33):
‘The possibility
certainly exists that a higher or the highest court might, in some
circumstances, make reparation for an initial violation of one of the
Convention’s provisions: this is precisely the reason for the existence of the
rule of exhaustion of domestic remedies, contained in Article 26 [now art
35(1)]. Thus, the [Adolf v Austria
(1982) 4 EHRR 313] judgment of 26 March 1982
noted that the Austrian Supreme Court had “cleared … of any finding of
guilt” an applicant in respect of whom a District Court had not respected the
principle of presumption of innocence laid down by Article 6(2).’
[44] As I have explained, it matters not to
the ECtHR whether a violation has been remedied by the domestic courts or there
has never been a violation in the first place: in either event the art 6
complaint will fail.
[45] For my part, notwithstanding the doubts
expressed by Lord Bingham in para [16], above, I am inclined to conclude (and
am certainly prepared in Mr Crow’s favour to assume) that, if the sentencing
judge had the power to hold a normal hearing but, wrongly as the Court of
Appeal thereafter held, thought it unnecessary to exercise it to achieve a fair
determination of the prisoner’s minimum term, a full appeal hearing at which
any necessary oral evidence would be adduced would then operate to remedy the
first instance failure and would avoid a successful application to Strasbourg
whether or not the appeal was properly to be analysed as making reparation for
an initial violation.
[46] It by no means follows, however, that the
same view can be taken of a case where the sentencing judge himself recognises
his inability to reach a fair determination without an oral hearing but is
prevented from holding one by a legislative bar. It seems to me one thing to hold that a
judge’s misjudgement is remediable by an effective appeal; quite another to
hold that the state can deliberately require a number of first instance
determinations to be made unfairly on the basis that this unfairness will then
be remedied on appeal.
[47] In my judgment para 11(1) is plainly
incompatible with the prisoner’s art 6 rights, at any rate in those cases where
the sentencing judge recognises that fairness requires an oral hearing. I would accordingly construe it, in much the
same way as did the Divisional Court, as being subject to an implied condition
that the judge has the discretion to order an oral hearing whenever he believes
such a hearing to be required in the interests of fairness.
Appeal dismissed.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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