Dalston Projects Ltd v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 10 May 2023 |
| Neutral Citation | [2023] EWHC 1106 (Admin) |
| Docket Number | Case No: CO/1160/2023 |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1106 (Admin)
Mr Justice Chamberlain
Case No: CO/1160/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nigel Giffin KC and John Bethell (instructed by Jaffa & Co) for the Claimants
Jason Pobjoy and Emmeline Plews (instructed by the Government Legal Department) for the Defendant
Hearing dates: 5 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 10 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
These proceedings concern a superyacht, “the Phi”, which has been moored at Canary Wharf since the end of 2021. Its beneficial owner is Sergei Georgievich Naumenko, the second claimant. The first and third claimants are part of the corporate structure through which the yacht is owned. Following the Russian invasion of Ukraine in February 2022, the National Crime Agency and Border Force Maritime Intelligence Bureau investigated vessels with connections to Russia. The Phi was identified as a vessel of interest. On 28 March 2022, the then Secretary of State, the Rt Hon. Grant Shapps MP, exercised powers conferred by regs 57C(1) and 57D(1)(a) of the Russia (Sanctions) (EU Exit) Regulations 2019 (SI 2019/855) to detain the Phi, on the ground that it was owned, controlled or operated by a person connected with Russia. That decision was reviewed but maintained on 11 April 2022 and 3 January 2023. The latter of these decisions was taken by the current Secretary of State, the Rt Hon. Mark Harper MP.
On 27 March 2023 the claimants issued proceedings under s. 38(2) of the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA”). The relief sought was an order setting aside the decision to detain and damages (i) under s. 8 of the Human Rights Act 1998 (“ HRA”) for breach of the claimants' rights under Article 1 of Protocol 1 to the ECHR and (ii) in the tort of conversion. Section II of CPR Part 79 applies to those proceedings. By CPR 79.5, applications to set aside sanctions decisions are to be made under the Part 8 procedure, as modified by Part 79.
CPR 79.7 provides that, when the court issues a claim form seeking to set aside a sanctions decision under s. 38(2) of SAMLA, it must fix a directions hearing between 14 and 28 days thereafter, unless the court directs otherwise. That timetable has been slightly extended by agreement between the parties. The parties are agreed on the directions that should be given, save for two matters. The agreed directions provide for a timetable leading to a substantive hearing in July 2023. Everyone agrees that, at that hearing, the court should consider whether the decisions of 28 March, 11 April 2022 and 3 January 2023 were lawful and, if not, whether they should be set aside. The claimants submit that the court should also consider whether they are entitled in principle to damages (i) under the HRA and (ii) in conversion. The defendant agrees (i) but not (ii). There was also a minor disagreement about the terms of the listing direction, which it was possible to resolve by fixing dates for the substantive hearing which suited everyone.
Submissions for the claimants
Nigel Giffin KC for the claimants accepts that it is appropriate to separate issues of causation and quantification of damages, to be decided on another occasion. If they cannot be agreed, they may call for detailed factual and/or expert evidence. However, the hearing in July ought to deal with the question whether the claimants are entitled in principle to damages under the HRA and/or in conversion. The latter is likely to involve resolution of a legal issue as to whether the decision of Flaux J (as he then was) in The Van Gogh [2008] EWHC 2794 (Comm), [2008] 2 CLC 708 should be departed from or distinguished. There may also be other issues of principle.
There is no need for the claim in conversion to be made by a separate Part 7 claim. By s. 38(5) of SAMLA, if the court decides that the challenged decision should be set aside, it may “make any order, or give any such relief, as could in the absence of this section be made or given in proceedings for judicial review of the decision”. In proceedings for judicial review, the court has power under s. 31(4) of the Senior Courts Act 1981 (“SCA”) to award damages, restitution or the recovery of a sum due “if (a) the application includes a claim for such an award arising from any matter to which the application relates and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application”.
There are examples of courts dealing with claims for damages in conversion as part and parcel of judicial review proceedings: see e.g. Gulf Insurance Ltd v Central Bank of Trinidad & Tobago [2005] UKPC 10 at [53]–[56] (judgment for damages to be assessed); R (Atapattu) v Home Secretary [2011] EWHC 1388 (Admin) at [3], [93] and [176] (claimant entitled in principle to damages for conversion, with causation and quantum left over); R (Checkprice UK Ltd) v HMRC [2010] STC 1153 at [1], [18]–[20] and [51]–[63]. Paragraph 12.8.4 of the Administrative Court Judicial Review Guide (2022) (“the Guide”) provides as follows:
“Where the assessment and award of damages is likely to be a lengthy procedure, the general practice of the Court is to determine the judicial review claim, award the other remedy sought (if appropriate) and then transfer the claim either to the County Court or to an appropriate division of the High Court to determine the question of damages. All parties must address their minds to the possibility of transfer as soon as it becomes apparent that issues other than damages have been resolved.”
Section 39(2) of ...
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