: Re Moazzam Begg
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 22 November 2016 |
| Neutral Citation | [2016] EWHC 3787 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | PTA/7/2014 |
| Date | 22 November 2016 |
[2016] EWHC (Admin) 3787
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
PTA/7/2014
Mr D Squires QC (instructed by Birnberg Peirce) appeared on behalf of the Appellant
Mr S Kovats QC and Mr R O'Brien (instructed by Government Legal Department) appeared on behalf of the Respondent
This is the remitted hearing of an application for a protective costs order by the Appellant, Moazzam Begg, against Her Majesty's Treasury pursuant to the ruling of the Court of Appeal at [2016] EWCA Civ 568.
In the original hearing before Cranston J, [2015] EWHC 1851 (Admin), in paragraph 26 he identifies the five conditions upon which a protective costs order could be made in this type of case, namely a challenge by a listed person to a decision by HM Treasury to list him under the Terrorist Asset-Freezing Act:
"First, the case must be of real benefit to the individual bringing it. Secondly, the individual must not be able to assess the prospects of success in the ordinary way. In other words, it must appear from the open material that the case is such that a reasonable person would litigate, but because of the closed material on which the defendant relies, reputable and competent legal representatives cannot advise whether the prospects are, in fact, good. Thirdly, having regard to the financial resources of the individual and to the amount of costs likely to be involved it is fair and just to make the order. Fourthly, if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so. Finally, the individual should not benefit from the order if his conduct is later judged to be unreasonable or abusive."
It is common ground that those are the conditions subject to which a protective costs order should be made. For present purposes, it is conceded by Mr Kovats that the case is potentially of real benefit to the Appellant, that having regard to his financial resources and the amount of costs involved it would be fair and just to make an order and that if an order is not made, the Appellant will probably discontinue the proceedings and would be acting reasonably in doing so. Accordingly, on the questions remitted to this court by the Court of Appeal, the answers are as given.
However, at the commencement of the case I raised with counsel for the parties a possibility not canvassed in their written submissions to me. I do not believe and it has not been submitted to me that the proposal which I have made conflicts with either the spirit or the letter of the decision of the Court of Appeal.
It is this: that to permit the Appellant to assess his prospects of challenging the order so as to require it to be quashed rather than revoked, he will be in a better position when the process of disclosure, including the exculpatory review, has been completed. It is common ground that AF (No 3) disclosure requirements apply to this type of case. He must, therefore, be told at the end of the disclosure process sufficient of the grounds upon which HM Treasury seek to resist his appeal for him to be able to give effective instructions about it and to advance, if he has one, a proper case about it.
If HM Treasury seeks to rely upon a ground that cannot be disclosed to him even to that extent, then HM Treasury will be put, I anticipate, to the option of withdrawing that ground. If HM Treasury can reveal sufficient of the grounds or all of the grounds upon which the decision was taken and is sought to be upheld, then the Appellant will be in a position not significantly worse than that of an ordinary litigant and will be able to assess, with the aid of skilled legal advice, his prospects of success in his appeal.
It therefore seems to me to be right that until the moment arrives at which he can make that judgment, there should be a protective costs order under which he is required to pay nothing towards the costs of HM Treasury even if his appeal were to be withdrawn or later dismissed. But once the disclosure process has been completed, then the position needs to be reviewed.
Mr Squires QC suggests that he should have 14 days after the conclusion of the disclosure process in which to make a decision. I agree that he should. Mr Kovats QC concedes that he should have that time.
Mr Kovats is not able formally to concede the order that I propose because, understandably, he has not been able to take instructions from all whose instructions are necessary for him to give that consent, but he has indicated to me that as the advocate for HM Treasury, if he could obtain such instructions, he would seek to do so and would not, in principle, oppose the order that I suggest.
Accordingly and for those reasons, I make a protective costs order of nil until 14 days after the conclusion of the disclosure process. I invite counsel to draw up the order to encapsulate what I intend.
For the avoidance of doubt, it should make it clear that these proceedings will proceed in the Appellant's full real name and not under a cypher.
MR SQUIRES: My Lord, two points. One is just to put on the record we would not necessarily accept that AF (No 3) disclosure in every case would enable a person to be advised on their prospects of success, but that is obviously something that we will have to wait and see what we get and whether there is an argument. I just would not want it to be taken that I had conceded that point.
What you have said is on the transcript, if there were ever to be one prepared. It is certainly on the record. I acknowledge that there is always that reservation, in this type of case. But my judgment, which was my judgment and not giving effect to something that was half agreed between you, was that in this type case it is almost always possible to make an evaluation of the chances of success from the position of the Appellant.
MR SQUIRES: My Lord, yes. We certainly appreciate that was my Lord's position.
My Lord, the second point is the costs of today's hearing. We do seek our costs up until Friday, which is when — this hearing was a remitted hearing to determine whether the three conditions were met. That was contested until we received my learned friend's skeleton, I think, at 5.45 pm on Friday. We seek our costs from the date of the Court of Appeal order until we received that skeleton. That was then conceded. My Lord, we see for the rest of the costs, it should be costs in the case from that time forward.
So that is Friday the 18th.
MR SQUIRES: It is, my Lord, yes.
Mr Kovats?
MR KOVATS: My Lord, we oppose that for two main reasons.
First, it is not correct to say that our skeleton conceded the application. Our skeleton put forward two arguments, one as to the amount of the cap and another as to a cross cap. In light of developments this morning, those arguments have not needed to be deployed, but it is wrong to say that we conceded the application.
No.
MR KOVATS: For the avoidance of doubt, our skeleton was not late. That was the agreed timetable for service of the skeleton.
My Lord, we respectfully say that in those circumstances, subject to the protective costs order and Cranston J's fifth condition as to whether or not —
Of course.
MR KOVATS: — ultimately the thing should be retrospectively revoked, subject to that, the order that your Lordship should make today should be costs in the appeal.
MR SQUIRES: My Lord, what was remitted was one question, which was are conditions 2, 3 and 4 met? That was conceded in the skeleton for the first time, which we received on Friday.
Yes, but there then followed, did there not, what should be done in consequence.
MR SQUIRES: Absolutely, my Lord. That is why we say we agree not entitled to our costs after that concession. But what we put in the skeleton argument dealing with conditions 2, 3 and 4, because that is what the court had permitted us to do and that was then conceded.
Indeed, but you then had to put in evidence to satisfy those conditions because at the stage when the Court of Appeal were considering it, there was inadequate evidence about those matters.
MR SQUIRES: No, but my Lord, there were already two witness statements at that stage.
But the Court of Appeal would have decided it themselves if it was adequate.
MR SQUIRES: It took the view it was not appropriate to do so not because lack of evidence, but simply because — we did raise it before the Court of Appeal, but it said that that is a matter that should go back to the High Court. It said it is not usual for the Court of Appeal to make decisions of fact. I think it is paragraphs 30 onwards in the Court of Appeal's judgment.
We had already put in two witness statements at that stage. The latest one simply updated the position. As I say, ultimately what the Court of Appeal asked us to do is to consider three matters. We put in a skeleton. It may be, my Lord, it is only the costs of the skeleton we should be entitled to, but certainly we put in a skeleton dealing with those matters and we then got a skeleton back conceding. (Pause)
No. I think the justice of the matter is answered by my making an order for costs in the case. The eventual order that has been made is different from that...
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