Mr Martin Warsama v The Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Master Victoria McCloud,MASTER VICTORIA McCLOUD |
| Judgment Date | 05 December 2018 |
| Neutral Citation | [2018] EWHC 3393 (QB) |
| Docket Number | Case Nos. HQ16X04249 and HQ16X04250 |
| Court | Queen's Bench Division |
| Date | 05 December 2018 |
[2018] EWHC 3393 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Master Victoria McCloud
Case Nos. HQ16X04249 and HQ16X04250
Authorities referred to:
CC Herts Police v Van Colle [2008] UKHL 50
Singh v SSHD [2016] EWCA Civ 492
Warsama and Gannon v Foreign and Commonwealth Office and others [2018] EWHC 1461 (QB)
Bill of Rights —ECHR Art. 8 —basis of damages in Convention Claims — loss of a chance — costs —statements of case — right to give account before public criticism — Parliamentary Privilege
This brief supplemental judgment deals with the form of order to be made arising from my longer judgment in this case which is at [2018] EWHC 1461 (QB). I received short written submissions from the parties and heard brief oral argument. This case, as appears from my main judgment, relates to the Wass Inquiry Report into alleged child abuse in St Helena, and to the impact which the Claimants say that Report (and, they argue, also the process by which it was established) causes them damage in the form of breaches of Art. 8 rights and loss flowing from that.
Among other matters it is complained that there was no or no adequate process or forewarning about possible criticism of the Claimants by the Inquiry, and of seeking an account from the Claimants before publication. It is trite law that in certain circumstances a person facing criticism in a public report is entitled to a process of notice and an opportunity to respond so that their account can be taken into account. Where that right arises it is of course part and parcel of basic fairness.
The above has become known as, variously, ‘Maxwellisation’ or the provision of a ‘Salmon” letter in the context of formal statutory inquiries, or simply as an aspect of fairness beyond that. (It is fairly ubiquitous as a concept: immaterially to this decision but of interest to those peculiarly interested in such things, I was informed recently that even lowly first instance judges facing criticism of their conduct are, apparently, entitled to be asked by an appeal court for their account, to be disclosed to the parties, before their conduct is publicly criticised on appeal ( Singh v SSHD [2016] EWCA Civ 492)).
Here the Claimants say that after a flawed process undertaken by a panel which was not truly impartial, they faced ‘trenchant’ criticism and have lost their careers and reputations. I summarise and oversimplify and I choose the formula ‘after… and’ so as to deliberately avoid the question of causation for the moment, but that is the gist.
The Defendants seek an order dismissing all claims and awarding their clients their costs on the footing that the issues of law in relation to Parliamentary Privilege were decided in their favour and that the claim as pleaded in reality has no substance and there are no maintainable claims remaining. The Claimants maintain that they succeeded in resisting the applications by the Defendants for summary judgment and/or strike out and hence are the successful parties.
This being a very brief judgment in lieu of an extempore decision I will not set out the arguments at length but will give my decision and in the course of that it will be clear as to my view on the salient matters argued, but omission to refer to every detail does not imply that I have ignored anything.
The starting point under the costs rules is that the successful party gets its costs. Issue-based costs orders are discouraged. In my judgment the point I have to decide is the simply stated one of ‘who has won?’ and I should start from there.
I say that with the slight caveat that if a party has technically managed to resist an entire strike out, but the claim has survived in name only, as a de minimis matter, then the ‘winner’ might well be a defendant even if not strictly completely successful on a strike out. So in that sense I intend to ask myself both ‘who has won?’ and ‘if anything remains does it amount to anything of substance practically?’
I shall start by reminding myself that the matters which were before the court at the substantive hearing were (a) applications by the Defendants for strike out and/or Summary judgment on the entire claim and (b) as a result of directions I gave by email with the cooperation of the parties, the necessarily imported questions of law (on undisputed facts insofar as relevant) were:
Whethe Ms Wass was acting as a public body for the purposes of the Convention; and
Whether on the pleaded facts of this case, and in particular the use by the Secretary of State of a parliamentary procedure known as a ‘Motion’ for an ‘Unopposed Return’, the Claimants’ Claims are defeated by the defence of Parliamentary Privilege; and
(stating much the same but using the expression ‘barred’ and a somewhat Dickensian expression on my part):
Whether a plea that [these Claims are] barred on grounds of parliamentary privilege in reliance upon Art IX of the Bill of Rights, is a good plea.
What did I decide?
There is no dispute that in relation to the ‘convention status’ question I decided that point against D3. That by itself does not conclude matters even as regards D3 since if there is nothing left of the claim once one takes into account the Privilege issue then claims against her would fail. Hence one considers the impact of the Privilege decision generally and not just in relation to D1.
As to the Parliamentary Privilege aspects the most useful passages in judgment on this point are those to which the parties referred me namely 112, 113, 115, and 156–158. I shall not set those out here and I refer to my judgment.
In my judgment the decision embodied in the above paragraphs amounts to a decision that the entirety of the claims are not defeated or barred by the plea of Privilege in reliance on Art. IX of the Bill of Rights, but that the Defendants succeeded in establishing their Privilege arguments in relation to any parts of the case which question the content of the Report or which seek damages relying on harm said to be done in consequence of the publication of it.
Given the wording of the issue which was formulated before hearing, and which the Defendants relied on in their submissions prior to this judgment, it seems to me that the answer to the questions posed on privilege are, strictly, ‘no’, in that my decision permitted such claims to continue as did not question or impugn the content of its report or rely on damage done by the publication of the contents of the report.
However that is not the end of matters. The Defendants refer to the ‘admittedly generous’ approach which I stated that I was taking to the reading of the Particulars of Claim, and to the fact that there has been no amendment subsequent to judgment, and to the content of the pleading as it stands, and they argue that in reality there is no claim left, practicably. The whole loss and damage in the claims against both Defendants as pleaded they say must be said to flow from the content of the report and hence, albeit I entertained the prospect that ‘process’ claims outside the bounds of Privilege might be valid claims, there is in fact no such remaining claim of any substance here on the statements of case.
The net effect therefore, say the Defendants, is that these claims now fall to be struck out. They have not been rescued by the type of amendment which I foresaw in judgment and the Defendants regard it now as time to call matters to a halt, since any investigation of loss on the basis pleaded will trespass into the forbidden forest of Privilege, being founded on the consequences of publication of the content of the report itself. Mr Johnson used the expression ‘forbidden land’ but I shall call it a forest, redolent as that term is of notions not merely of trespass, but of a risk of becoming constitutionally lost, never to find ones way out.
To answer the above I need to look at the Particulars of Claim (I will refer to the claim by Mr Warsama which was the one focussed on in this hearing, but it would make no...
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The Foreign and Commonwealth Office v Mr Martin Warsama
...(CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION MASTER VICTORIA McCLOUD [2018] EWHC 1461 (QB) and [2018] EWHC 3393 (QB) Royal Courts of Justice Strand, London, WC2A 2LL Neil Sheldon QC (instructed by the Government Legal Department) for the First Alan Payne ......