Moore-Bick v Mills
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 27 February 2020 |
| Neutral Citation | [2020] EWHC 618 (Admin) |
| Date | 27 February 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/388/2020 |
[2020] EWHC 618 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Mostyn
No. CO/388/2020
Ms J. Clement (instructed by Government Legal Department) appeared on behalf of the Applicant.
THE RESPONDENT did not appear and was not represented.
This is an application under s.36(2) of the Inquiries Act 2005 made by the Chairman of the Grenfell Tower Enquiry, Sir Martin Moore-Bick (“the applicant”), for an order compelling the respondent, Mr Gareth Mills, to answer fully a questionnaire that was issued to him on 12 July 2019.
The legal machinery relevant to this application is as follows. Under Rule 9 of the Inquiry Rules 2006, an inquiry can make a request for evidence. In default of provision of such evidence, by virtue of s.21 of the Act, the Chairman of an inquiry may require the production of evidence. Section 21(2) states that:
“The chairman may by notice require a person, within such period as appears to the inquiry panel to be reasonable—
(a) to provide evidence to the inquiry panel in the form of a written statement;
(b) to provide any documents in his custody or under his control that relate to a matter in question at the inquiry;
(c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.”
By s.21(3), such a notice must explain the possible consequences of not complying with the notice and indicate what the recipient of the notice should do if he wishes to make a claim within sub-s.4. That subsection states:
“A claim by a person that—
(a) he is unable to comply with a notice under this section, or
(b) it is not reasonable in all the circumstances to require him to comply with such a notice,
is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.”
Section 22 affords the person receiving such a notice the right to claim any privilege that is available in the High Court: that would include the privilege against self-incrimination and legal professional privilege. Section 35 creates a criminal offence of failing, without reasonable excuse, to do anything that a person is required to do by notice under s.21. Section 36, with which I am concerned, relates to enforcement by the High Court. Sections 36(1) and (2) state:
“(1) Where a person—
(a) fails to comply with, or acts in breach of, a notice under section 19 or 21 or an order made by an inquiry, or
(b) threatens to do so, the chairman of the inquiry, or after the end of the inquiry the Minister, may certify the matter to the appropriate court.
(2) The court, after hearing any evidence or representations on a matter certified to it under subsection (1) may make such order by way of enforcement or otherwise as it could make if the matter had arisen in proceedings before the court.”
Section IV of Part 81 of the Civil Procedure Rules deals with the procedure for the adjudication of such a certification by the High Court. Although s.36(2) appears to give the court a general discretion, it is clear that the discretion is by no means unfettered. In this regard, I refer to the decision made by Gillen J, as he then was, in the High Court of Northern Ireland in the case of Re Paisley Junior (No 3) [2009] NIQB 40 between paras.32–38. At para.37, the learned Judge described the court's role as follows:
“On the other hand, although the court must only act after hearing any evidence or representations on the matter certified by the Chairman, the court will bear in mind that where tribunals have been given the statutory task to perform and exercise their functions with a high degree of expertise so as to provide coherent and balanced judgment on the evidence and arguments heard by them, that does make those tribunals better placed to make a judgment than the court on the need for particular information to be brought before it. In this case the chairman has taken all the detailed steps and analysis outlined in Section 21 of the 2005 Order. Whilst it may well be that recognition of this does not go as far as the concept of ‘curial deference’ to decisions of specialist administrative bodies in the context of judicial review proceedings adumbrated by the Supreme Court in Ireland in Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare (1998) 1 IR 34 and Sekou Camara (Applicant) v Minister for Justice Equality and Law Reform and Others Irish Times Reports 25 September 2000, nonetheless I consider Mr Larkin was entitled to invoke in aid of his case the widely cited words of Lord Woolf MR in R v Lord Saville of Newdigate ex parte A (2000) 1 WLR 1855 at 1865H paragraph 31 when he said of the Saville Inquiry:
‘It is accepted on all sides that the Tribunal is subject to the supervisory role of the courts. The courts have to perform that role even though they are naturally loathe to do anything which could in any way interfere with or complicate the extraordinarily difficult task of the Tribunal. In exercising their role the courts have to bear in mind at all times that the members of the Tribunal have a much greater understanding of their task than the courts…’
Thus the court in coming to a decision does not write on a blank page. It is this factor which distinguishes this hearing from a de novo appeal. The decision of the Chairman of the Inquiry, having followed the steps set out in Section 21 of the 2005 Act, must carry weight and I must be wary of interfering with or complicating the task of Lord MacLean.”
I agree entirely with that statement.
Although, as I have said, the court appears to be vested with a general discretion, in my view that discretion is certainly not unfettered. Although in the corpus of the jurisprudence one finds the expression “unfettered discretion” uttered time and...
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Sir John Saunders Chairman of the Manchester Arena Inquiry v Ben Romdhan (Previously known as Ismale Abedi)
...Re Section 36 of the Inquiries Act 2005 [2008] NIQB 158; Re Ian Paisley Junior [2009] NIQB 40; Hanson v Carlino [2019] EWHC 136; Moore-Bick v Mills [2020] EWHC 618 (Admin); Saunders v Taghdi [2021] EWHC 2785 (Admin); Saunders v Taghdi [2021] EWHC 2878. 13 It was common ground that those c......