R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Collins |
| Judgment Date | 22 July 2003 |
| Neutral Citation | [2003] EWHC 1743 (Admin) |
| Docket Number | Case No: CO/2764/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2003 |
[2003] EWHC 1743 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr. Justice COLLINS
Case No: CO/2764/2001
Jonathan CROW & Daniel BEARD (instructed by Treasury Solicitor) for the Applicant/Defendant.
David VAUGHAN Q.C. & Fergus RANDOLPH (instructed by Thomas Cooper & Stibbard, Solicitors) for the Respondents/Claimants.
The international agreement in question is the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), to which the United Kingdom is a signatory. CCAMLR sets annual total allowable catches and divides the relevant waters into designated blocks of ocean. This case concerns the Maritime zone of South Georgia and the South Sandwich Islands (SGSSI). The claimants had expected to be granted a licence to catch up to 400 tonnes of toothfish (worth some £2.5 million) for the 2001 season (the season runs between May and August: it seems that the fish can only be caught when it is dark). The boats they used included the M.V. Jacqueline. It had been granted licences for the seasons since 1997 and had not, save in one relatively minor respect, been found to have breached any applicable conservation measures.
Licensing is controlled by the Director of Fisheries for SGSSI. SGSSI was, until 1985, a dependency of the Falkland Islands. Since then by virtue of the SGSSI Order 1985 (1985 No.449) it has been a distinct territory and is now designated a British Overseas Territory (B.O.T.): see British Overseas Territories Act 2002 s.1(3). Formerly, it was known as a British Dependent Territory. It is administered by a Commissioner (1985 Order Article 4). Article 5(1) of the Order reads as follows: -
"The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order or any other law and such other powers and duties as Her Majesty may from time to time be pleased to assign to him and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State".
Article 7 of the Order empowers the Commissioner to appoint persons to 'such offices for the Territories as may lawfully be constituted by Her Majesty' and the Director of Fisheries was appointed pursuant to those powers by means of the Fisheries (Conservation and Management) Ordinance 1993 the effect of which was to prohibit fishing in a maritime zone extending 200 nautical miles from SGSSI without a licence.
For the 2001 season, 4,500 tonnes was the limit laid down pursuant to the arrangements agreed under CCAMLR. 3,900 tonnes were allocated to long lining and it was proposed that ten licences should be awarded, nine for 400 and one for 300 tonnes. The director of Fisheries was intending to allocate four out of the ten to U.K. or B.O.T. registered vessels of which the M.V. Jacqueline would have been one. He sought comments from the FCO in London. It was said that it was a British foreign policy objective to maintain the smooth operation of the Antarctic Treaty System of which CCAMLR was an important constituent. Thus there must be an avoidance of action which might lead to concerns among other signatories to CCAMLR that the allocation of licences was not being carried out on an equitable basis and that too many of the limited number of licences were being allocated to United Kingdom or B.O.T. registered vessels. Problems of sovereignty still exist. Accordingly, the Director was advised that he should reduce the allocation to U.K. or B.O.T. registered vessels from four to two. Certain criteria were to be applied to identify those two.
On 14 March 2001 the list of vessels to be licensed was published: it did not include the M.V. Jacqueline. Believing that the criteria had been improperly applied, the claimants sought judicial review of that decision. This claim succeeded before the Chief Justice of SGSSI (Wood CJ) on 1 June 2001 and the decision of the Director of Fisheries was quashed. He had not applied his mind properly to the relevant considerations largely because he believed that the advice from Whitehall had to be followed as if it were a direction. That was an error. Wood CJ did consider whether he would have intervened if a direction had been given. In his judgment (at p.40 of the bundle before me) he said this,
"The role of the Commissioner, and indeed the Director of Fisheries, is a dual one. Both are members of the Diplomatic Service of the Foreign and Commonwealth Office, and indeed both occupy other roles unrelated to SGSSI. Quite separately from that however, the posts of Commissioner for SGSSI and the Director of Fisheries for that territory are quite distinct statutory roles created under the legislation set out above. Whilst the Government of SGSSI has its officers – namely the Commissioner and those appointed by him – it does not of course have any separate elected or external political control save for that derived under the legislation of the United Kingdom. In effect, Her Majesty the Queen acting through the Secretary of State for Foreign and Commonwealth Affairs of the Government of the United Kingdom has the ultimate control by power to direct (and indeed, in some circumstances, even to disallow legislation made by) the Commissioner. That such right exists at all is beyond challenge. The manner in which it is exercised however may well be open to scrutiny, but though the individual directed is an officer of the Government of South Georgia and the South Sandwich Islands, the direction emanates from the Secretary of State in London. It is my view that if such direction is open to scrutiny, then this must be a matter for the Courts of England and Wales. It is not for me to decide whether or not the Courts there have such jurisdiction but I am firmly of the view that the Court here does not".
For the purpose of these proceedings, it is not necessary to decide whether Wood CJ was right to say he would have had no jurisdiction. However, I am by no means persuaded that he was correct since he would have had to decide whether the actions of the Director were lawful. If the direction under which he acted was itself unlawful, the Director could not in my view rely upon it to justify what he had done. It seems to me that, for reasons which will become clearer in the course of this judgment, there would be jurisdiction both in the court of SGSSI and in the High Court in London to give relief against an unlawful direction or its implementation. However, it might well be in such a case that proceedings in London would be more convenient.
There was no appeal against Wood CJ's decision. Instead, the defendant issued a direction in these terms: -
"… in the exercise of my powers under Section 5(1) of the SGSSI Order 1985, on behalf of Her Majesty, I hereby instruct the Commissioner in the exercise of his powers under Section 4(2) of the 2000 Ordinance, to direct the Director not to grant a licence to fish for toothfish during the fishing season to any United Kingdom or United Kingdom Overseas Territories flagged vessels other than the Argos Georgia and the Argos Helena".
This led to an immediate judicial review claim in this Court. It was lodged on 11 July 2001. It sought an order to quash the defendant's direction and a declaration that the policy which excluded the claimant was unlawful and that they were or should have been entitled to a licence. Damages were claimed "for breach of statutory duty" and it was stated in the Claim Form that the claim did not include any issues arising from the Human Rights Act 1998. On 5 December 2001 Scott Baker J found in the claimants' favour and quashed the direction. He ordered that 'the question of damages be adjourned generally with liberty to restore'. The order in relation to the damages claim was made by consent since the parties had very sensibly agreed (although only in November 2001) that any such claim should await the decision on judicial review. Scott Baker J gave leave to appeal and on 30 October 2002, the defendant's appeal was dismissed. The court directed that the claim for damages should be remitted to the Administrative Court and that a Case Management Conference be convened as soon as possible for the management of the damages claim.
On 13 March 2003, the defendant served an application to strike the claim out. This led to an application by the claimants to amend their particulars to claim damages under the Human Rights Act 1998 on the ground that their rights under Article 1 of the First Protocol to the European Convention on Human Rights had been breached and under common law in addition to the claim for breach of statutory duty. There was also added a claim for exemplary damages but it was not and is not alleged that the actions of the defendant amounted to misfeasance. The matter came before me on 17 March 2003. I allowed the application to amend but directed that the defendant should be entitled to raise in the context of any application to strike out the amended particulars (which I was informed would be made) issues of limitation. On 19 March 2003 an application to strike out the particulars was made and it is that application which has been argued before me. It is made under CPR 3.4(2)(a) and/or the inherent jurisdiction of the court on the ground that they disclose no reasonable cause of action. In the alternative, summary judgment...
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