R DA and Others v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 22 June 2017 |
| Judgment citation (vLex) | [2017] EWHC J0622-2 |
| Date | 22 June 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/379/2017 |
[2017] EWHC J0622-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/379/2017
Mr Ian Wise QC, Ms Caoilfhionn GallagherQC andMr Michael Armitage (instructed by Hopkin Murray Beskine) appeared on behalf of the Claimant
Mr Clive Sheldon QC and Mr Simon Pritchard (instructed by the Government Legal Department) appeared on behalf of the Defendant
DISCUSSION ON COSTS
Yes, I do not know whether you have seen the final thing, but I added a very short paragraph, new paragraph 41, in which I said:
"The claimants also relied on common law principles. Since I found in their favour on the grounds set out in this judgment, I have not thought it necessary to go into those arguments."
MR WISE: We have not seen the final version.
I thought it was sensible just to include it. Otherwise, thank you for your various comments. I have not in fact, Mr Sheldon, adopted most of yours. I am persuaded that if you do not like it then you do not like it, but it is not something I am prepared to change at this stage.
MR SHELDON: My Lord, thank you for that.
MR WISE: With regards to consequential orders, has your Lordship had the note that we have handed up?
Yes, I have. I saw that this morning.
MR WISE: Can I apologise for the delay in getting it to you.
Do not worry. I appreciate the time constraints. As you probably appreciate, I cannot do the usual delay in writing, because I shall have no jurisdiction shortly.
MR WISE: Absolutely. We are very much aware of that, my Lord. Have you had the chance to read this?
I have. I cannot pretend I read it in great depth, but I read through it. Let us start with the order, shall we? You want a declaration which is rather more focused than that which Mr Sheldon thinks to be appropriate.
MR WISE: Does your Lordship have the annex to our note? The one that starts with the draft order we sent on the day.
Where are we?
MR WISE: There was a separate attachment on the email.
I am not sure.
MR WISE: Can I pass a copy up to you? (Handed)
I am not sure whether it is a called an annex.
MR WISE: I am just passing a copy up, my Lord.
Is this the draft order?
MR WISE: There are a number of documents that were attached.
Yes, I do have these. They were not specifically described as an annex.
MR WISE: Nothing hangs on that. You can see the terms that we propose at paragraph 2.
Yes. As you know, I have always taken the view that we are in an era when judgments are far too long. I have tried to keep it as short as reasonably possible, which means that, unlike the case for example of Lumba v SSHD [2011] UKSC 12, it is not difficult to see what the case actually decides if people want to.
On the other hand, I take your point that it may be desirable often to focus on what the declaratory relief is concerned with.
MR WISE: Yes.
I do not honestly think there is a great deal between you in this, other than whether it should be in the detail that you suggest or in the general form. Quite often it is appropriate simply to say a declaration or sometimes a declaration is not needed.
MR WISE: It is implicit as it is set out in the judgment absolutely, but this is a case where we thought it would be appropriate. It is ultimately a matter for your Lordship.
I suppose one could say that the advantage of the declaration that you seek is it draws attention for those who have any interest to what actually the decision in the case was about.
MR WISE: Yes. Although all those of us who are deeply involved in the case will know, for the more casual observer, if I can put it in that way, it would not be as immediately obvious.
And may help the press too.
MR WISE: It may. I do not know where they have gone.
Actually, I have a practice of handing out to the press officers who are attached to this building, who I know of course we can entirely trust, in advance so that they have the opportunity to make a proper note rather than a last minute scramble sometimes by journalists who are not very good at identifying what the case is about. I have suggested to my brethren that it might be a good idea if they follow that example.
MR WISE: Yes. There is a lot of trust of course in that.
I was going to say, Mr Sheldon, do you have strong feelings about this?
MR SHELDON: My Lord, only in so far as we do not think it is necessary for you to go beyond what we have already suggested. That is the normal practice.
Well, it varies. As I say, it depends.
MR SHELDON: It was the practice in the two cases that we referred to. You have our submissions.
In R (Hurley) v SSWP [2016] PTSR 636 I gave a judgment in that form, but of course essentially the parties agreed that that was the appropriate form. Well, you agreed.
MR SHELDON: We certainly did agree. My Lord, we have set out our proposed course of action. We do take issue. We say it is not appropriate to do what is requested by the claimants.
It is not a question of it being appropriate. It is a question of whether it is necessary, I think.
MR SHELDON: We say it is not necessary. What is necessary is you have written a judgment which sets out your reasoning.
That is so. Do you have any objection, assuming I was in favour of Mr Wise, to the form that he seeks or the wording that he seeks?
MR SHELDON: The only wording that I would seek too correct or add is in 2(b). We are looking at their draft. I do not think it should read "contrary to Article 14 read with Article 8 and Article 3 of the UNCRC". We would say "and in light of Article 3 of the UNCRC."
Yes, I think that is probably correct.
MR WISE: We are happy with that, my Lord.
If I am going to make a declaration, "read with Article 8 …"
MR WISE: Delete the "and" and insert "in light of". We are quite happy with that, my Lord. With regards to necessary, we think it is necessary so people are clear as to what exactly the outcome is.
I can see that in the circumstances it could be said to be desirable. I do not think there is anything really between you. I am content, Mr Wise, to grant the declarations in the form you want with that small amendment.
MR WISE: I am obliged, my Lord. We will of course draft up the final order.
Yes, of course.
MR WISE: The next bone of contention your Lordship sees —
Leave to appeal.
MR WISE: Well, we were going to come on to payment on account, but we can do leave to appeal. I am entirely in your Lordship's hands with which way we deal with it.
Let us deal with that now.
MR WISE: Leave to appeal?
Yes. You have two points, as I understand it. You say there should not be leave to appeal, but if it is it should be a leapfrog. So far as a leapfrog is concerned, correct me if I am wrong, I forget to recheck this, I cannot leapfrog unless there is consent, can I?
MR SHELDON: The law has changed. There is no longer a requirement for consent.
I am so far out of date.
MR SHELDON: Relevant for the matter that has come before you for the leapfrog in the last year or so you do not need consent although we —
MR WISE: Just before you do that, can I just remind your Lordship that the short bundle with the proposed draft order has the relevant section of the Administration of Justice Act at the back.
Yes.
MR WISE: Sorry. I was interjecting.
It has to be, does it not, a point of construction?
MR WISE: Your Lordship is at subsection 3 at the bottom of the page. A point of law of general importance is involved. That is plainly met in that decision. The point of law either (1) relates wholly or mainly to a construction of a statutory instrument. We say that applies here. Or (2) is one in respect of which the judge is bound by a decision of the Court of Appeal.
That does not apply, does it?
MR WISE: You were not, but the Court of Appeal —
I am not bound.
MR WISE: Anyway, we comply with those provisions, but our primary position is that the law is clear in the light of R (SG and others) v SSWP [2015] and R (MA) v SSWP [2014] PTSR 584. Your Lordship has merely followed the jurisprudence of the higher courts and, in those circumstances, permission to —
I think Mr Sheldon would say the law is clear against you.
MR WISE: The law is clear in favour of these claimants in the sense that your Lordship has set out.
That is the question.
MR WISE: Again, a matter for your Lordship's discretion.
I do not think, Mr Wise, that if I were to grant leave to appeal this is an appropriate case for the leapfrog. It is open to the Court of Appeal to decide either way. I appreciate that this...
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