Faisaltex Ltd & Others v Chief Constable of Lancashire Constabulary and Another (No 1)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BLAKE,THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 24 July 2009 |
| Neutral Citation | [2009] EWHC 1884 (QB),[2009] EWHC 799 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X01067 |
| Date | 24 July 2009 |
[2009] EWHC 1884 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Eady
Case No: HQ09X01067
Matthew Ryder (instructed by DLA Piper UK LLP) for the Claimants
Andrew Bird (instructed by Lancashire Constabulary and HMRC) for the Defendants
Hearing date: 8 July 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady :
On 9 July I heard an application “for directions” in this litigation made by Mr Matthew Ryder on behalf of the Claimants. What he was in effect seeking was an injunction on their behalf to restrain, in certain defined respects, the conduct of investigations by the Chief Constable of Lancashire Constabulary and Her Majesty's Revenue and Customs, who are the Defendants, into what are suspected to be large scale criminal activities.
In the action the Claimants seek declarations, delivery up and damages based on allegations of unlawful behaviour on the Defendants' part. What is said, in particular, is that they made excessive seizures of the Claimants' property when executing search warrants on or about 3 April 2008. There is already in place a protocol governing the inspection of the seized material, which is arranged so as to give an opportunity to independent counsel to identify any documents which are, or are likely to be, covered by legal professional privilege (which, of course, it is accepted the Defendants are not entitled to inspect or retain). What the Claimants seek primarily by this application is to extend the protocol to cover documents which may, for some other reason, have been unlawfully seized. In particular, it is suggested that the independent counsel should also seek out material which, by some definition or another, is not “relevant” to the Defendants' enquiries.
The Claimants are also seeking an extension of time within which to comply with the protocol.
It is plainly undesirable for the court to become involved in such a way as to inhibit the discharge of the Defendants' duties in the investigation of suspected crimes, save in so far as it can be demonstrated to be necessary and proportionate to do so.
The background of these enquiries is fully explored in two earlier judgments and does not need to be rehearsed again for present purposes. The first judgment is that of the Divisional Court following the Claimants' application for judicial review relating to the legality of the search warrants: see R (Faisaltex & ors) v Preston Crown Court & ors [2008] EWHC 2832 (Admin). The second judgment is that of Blake J on the Claimants' application for an injunction, made in these proceedings, and delivered on 20 March of this year.
For present purposes, I do not believe it is necessary for me to refer to the underlying facts save by way of very brief summary. The seizures were obtained pursuant to nine search warrants which were, as I have said, executed on 3 April 2008. These proceedings were commenced almost a year later, on 12 March 2009. The particulars of claim followed on 26 March and the defences were served on 6 May.
The Administrative Court upheld the legality of the issue of the warrants in question, but declined to adjudicate on the legality of their execution. It was suggested that it would be more appropriate for the Claimants to pursue, in this respect, a private law remedy. Keene LJ there referred, at [90]-[91], to the earlier decision of R v Chief Constable of the Warwickshire Constabulary, ex parte Fitzpatrick [1999] 1 WLR 564, where Jowitt J, with whom Rose LJ agreed, had emphasised a number of points of principle, at p.579:
“Judicial review is not a fact finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure in breach of section 16(8) should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles. In an appropriate case the court in a private law action is able to grant interlocutory relief on a speedy basis on well recognised principles so that in all but the clearest cases of a breach of section 16(8) judicial review has only disadvantages and no advantages when compared with the private law remedy.”
In the light of these observations, Keene LJ noted that there was a dispute as to how much irrelevant material had been seized, if any, and said that it was quite clear that resolving disputes about the relevance of particular documents would be likely to require extensive oral evidence. The documentation is undoubtedly, as he described it, “voluminous”. It was recognised that “very considerable issues of fact are bound to arise”.
His Lordship concluded that there was no reason why civil proceedings could not establish whether any excessive seizure had taken place. These would determine the extent to which the relevant officer or officers had gone outside the scope of the warrant. He concluded:
“We are satisfied that judicial review proceedings are not an appropriate mechanism for resolving the large number of issues of fact as well as law which are likely to arise when determining whether excessive seizures have taken place in the execution of these warrants.”
In the light of this reasoning, albeit after some delay, the Claimants decided to commence these proceedings.
When the matter came before Blake J in March of this year, the remedy sought was an injunction to prevent the Defendants from inspecting the seized material prior to the resolution of the claim. That application was refused, and against that background Mr Bird, for the Defendants, submits that what the Claimants are now seeking is a further bite of the same cherry. He also concluded that the protocol arrangements, to which I have referred above, were, contrary to the Claimants' submissions, capable of providing a reasonably effective procedure for the protection of the Claimants' rights, particularly with regard to legal professional privilege. At that time the Claimants were asking for an injunction to prohibit the investigators from having access to any of the material in which LPP documents had been found until such time as a better protocol could be agreed. That was rejected.
What is now claimed is an injunction to extend the protocol much more widely, so as to prevent the investigators inspecting or retaining material which might be irrelevant to their task. That goes beyond any legitimate function of private law proceedings contemplated by the Divisional Court. They may be apt for resolving issues of fact and law for the purpose of deciding to what remedies the Claimants may ultimately be entitled, but there is no reason why they should be used for the supervision or management of ongoing criminal investigations.
At the conclusion of the hearing before me, just after 5 pm, I indicated that the applications would be refused. For lack of time, however, it was necessary for me to set out my reasons in writing at a later stage. That is the purpose of the present judgment.
Mr Bird submits, when it comes to the assessment of where the balance of convenience lies, that it is appropriate to take into account the public interest and, especially, the desirability that criminal investigations should be carried out as expeditiously as possible in accordance with the statutory obligations imposed and also the relevant codes of practice. He also argues that there is no reason to suppose that, in so far as it is proved ultimately that there has been any degree of excessive seizure, damages would not provide an adequate remedy to the Claimants. By contrast, he points out, no cross-undertaking as to damages has at any stage been offered by the Claimants.
It is unnecessary to go into detail as to the operation of the protocol, but it was referred to by Blake J in his judgment at [35] onwards and is also addressed in considerable detail in the witness statement of Kathryn Whelan, who is the solicitor for the HMRC. In brief, what has been happening is that the Defendants serve scanned copies of the seized material on the Claimants' solicitors, together with specially adapted search software. There is set a deadline for the Claimants to identify the files among the scanned material that are likely to be subject to LPP. The Claimants inspect the scanned copies and identify the relevant files. Those are then sent to independent counsel, without being inspected by the Defendants' investigating officers.
Should the independent counsel agree that the documents are subject to LPP, they will be returned to the Claimants forthwith without inspection by the officers. If the independent counsel disagrees, then the Claimants are to be notified. Any remaining disputes can be resolved through the statutory mechanism of an application to the Crown Court pursuant to s.59 of the Criminal Justice and Police Act 2001.
Mr Bird pointed out, as part of the narrative, that the number of documents sought to be excluded as being subject to LPP has so far been relatively small.
Central to Mr Ryder's submissions is the decision in R v Chesterfield Justices, ex parte Bramley [2000] QB 576. It was as a result of that decision that Parliament shortly afterwards enacted Part 2 of the 2001 Act.
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Table of Cases
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