R Mh v Sshd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 14 October 2009 |
| Neutral Citation | [2009] EWHC 2506 (Admin) |
| Date | 14 October 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2936/2007 |
[2009] EWHC 2506 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Sales
Case No: CO/2936/2007
Ms Laura Dubinsky (instructed by Refugee and Migrant Justice) for the Claimant
Mr Alan Payne (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 15/6/09 – 19/6/09
Mr Justice Sales:
The main subject of this claim as it currently stands is a claim for damages for false imprisonment of the Claimant by virtue of the exercise of powers of detention by the Defendant (“the Secretary of State”) under paragraph 2(3) of Schedule 3 to the Immigration Act 1971.
The claim was commenced on 11 April 2007 at a time when the Claimant was still held in detention. On 21 August 2007 the Claimant was released from detention upon an application for bail made to an Immigration Judge, after several previous such applications had been dismissed.
Originally, the claim was brought by way of the judicial review procedure under CPR Part 54 for a mandatory order requiring the Secretary of State to direct the release of the Claimant, together with declaratory relief and damages for the tort of false imprisonment. Since the claim included a claim for a mandatory order, it was obligatory for the Claimant to use the Part 54 procedure: CPR Part 54.2. The declarations sought were a declaration that the Claimant has been unlawfully detained and a declaration that the Secretary of State “has failed to establish and/or implement a system to prevent immigration detainees from being held in prisons contrary to his own policy and/or to prevent immigration detainees from being held with convicted prisoners contrary to the Prison Rules 1999”. There was also a claim for just satisfaction under the Human Rights Act 1998 in relation to what was claimed to be a breach of Article 5(1) of the European Convention on Human Rights (right to liberty and security of the person); however, Miss Dubinsky for the Claimant told me that it is parasitic upon, and adds nothing to, the claim for false imprisonment: there was therefore no argument about Article 5 and the case before me proceeded simply as a claim for false imprisonment.
A claim for damages in tort may be included in judicial review proceedings under Part 54: see CPR Part 54.3(2), which cross-refers to s. 31(4) of the Supreme Court Act 1981. Section 31(4) provides:
“(4) On an application for judicial review the High Court may award damages to the applicant if—
(a) he has joined with his application a claim for damages arising from any matter to which the application relates; and
(b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages.”
Since the Claimant has now been released, he does not pursue the claim for a mandatory order. An amended claim form was issued in January 2009. He does maintain his claims for damages for false imprisonment and for declaratory relief. There is no doubt that it was open to the Claimant to include his claim for damages for false imprisonment in these judicial review proceedings, in accordance with CPR Part 54.3(2) and s. 31(4) of the 1981 Act. As it transpires, however, there are certain disputes of fact which are potentially of relevance to the determination of the claim. Both parties assumed that the claim in respect of false imprisonment should be determined in accordance with the usual procedure in judicial review proceedings, without hearing oral evidence from witnesses and without cross-examination. This left the court in an awkward position as to the proper approach it should adopt in resolving relevant disputes of fact. It also prompts the following comments on the procedure which should be followed in this sort of case.
Usually, a claim for judicial review involving application of rules of public law will be capable of being resolved on the basis of written witness statements and the documents exhibited to them. The facts in such cases are not substantially in dispute. For this reason, CPR Part 8 as modified by CPR Part 54 applies to such claims. CPR Part 8 provides for a somewhat simplified procedure where the court is required to decide on a question “which is unlikely to involve a substantial dispute of fact”: CPR Part 8.1(2). Very often, the factual position so far as concerns liability in relation to a claim in tort for damages which is included in a claim in judicial review will be capable of being established by reference to the same materials, where the facts are not substantially in dispute (if liability is established, a factual inquiry into the damage suffered can be directed).
Sometimes, however, a substantial dispute of fact may arise in such cases. Where this occurs, either party may apply to the court for an order under CPR Part 8.1(3) for the claim to continue as if the claimant had not used the Part 8 procedure (i.e. for it to be treated instead as a Part 7 claim), and for directions. Alternatively, either party may apply to the court within the Part 8/Part 54 procedure for directions requiring or permitting the giving of oral evidence or requiring the attendance for cross-examination of a witness who has given written evidence: CPR Part 8.6(2) and (3). In practice, in such a situation, once it becomes clear that a substantial dispute of fact needs to be considered in order for the claim to be determined, the parties should co-operate to seek appropriate directions from the court as to how that dispute of fact may be resolved (see also R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) at [15]-[29], to which Mr Payne properly drew my attention shortly before the handing down of this judgment). The fact that a claim (such as a claim in tort) happens to be brought using the procedure in Part 54 does not mean that ordinary procedures employed by the courts for resolving substantial disputes of fact (including cross-examination) are not to be applied. It is difficult to see why the procedure for resolving a substantial dispute of fact should be any different from that which would be applied if such a claim was brought (as it could have been) using the Part 7 procedure, which is usually the appropriate procedure to be employed where there is or may be a substantial dispute of fact. The reason provision is made in the rules for a claim such as a claim in tort to be included in a Part 54 claim is for convenience and to promote consistency of outcome, by ensuring that all relevant claims (in both public law and private law) arising out of a particular set of facts can be heard and determined in the same proceedings; it is not to provide a passport to avoid the usual procedures which the courts employ to resolve substantial disputes of fact. (There may sometimes be good reason to proceed on the basis of written evidence alone, for instance if a person is currently detained and a speedy decision about the lawfulness of his detention is required; then the court may simply have to do the best it can on written material – but that is not this case, as it came before me, and even in such a case it would still be desirable for the parties to seek to agree and to inform the court in advance that such a departure from the usual methods of resolving disputes of fact is proposed by them).
In the present case, it emerged from the evidence served by each side that there was a substantial dispute of fact as to whether the Claimant failed to co-operate with immigration officials who were seeking information from him in order to give effect to the order for his deportation. As appears below, that was an issue which potentially affected the lawfulness of the Claimant's detention, and hence affected his claim for declaratory relief, for damages for false imprisonment and (while he was still detained) for a mandatory order for his release. But when it emerged that there was a factual issue between the parties on this point neither the Claimant nor the Secretary of State made any application to court for oral evidence to be heard or for cross-examination of witnesses. Instead, at the hearing both Mr Payne, for the Secretary of State, and Miss Dubinsky, for the Claimant, made extensive reference to the contemporaneous documentation in the form of reports of meetings between officials and the Claimant. Miss Dubinsky also relied on witness statements of the Claimant, dealing in general terms with what had happened at those meetings. The Secretary of State did not put in witness statements from the officials who attended the meetings, although the contemporaneous documents recorded their views of what had happened. (At the end of the trial Mr Payne did make an application that the Claimant should be called to give oral evidence; the application was made without prior notice to the Claimant, who by that stage was not in attendance at court; in my view, it was an application made far too late in the day and it fell to be rejected for reasons I gave at the time).
Mr Payne submitted that the hearing before me did not constitute a trial. I cannot accept this. The hearing before me clearly was a trial of the Claimant's claims in tort. The usual rules of evidence apply. Changing tack, Mr Payne also submitted, by reference to CPR 32.5, that the onus lay on the Claimant to give evidence orally unless the court ordered otherwise, if he wished to...
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