Robert John Minshall v Hmrc and Another (Defendants/Applicants)
| Jurisdiction | England & Wales |
| Judge | Mr L Blohm |
| Judgment Date | 12 November 2013 |
| Neutral Citation | [2013] EWHC 4431 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: HC13A00716 |
| Date | 12 November 2013 |
[2013] EWHC 4431 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Mr L Blohm QC
(Sitting as a Judge of the Chancery Division)
Claim No: HC13A00716
Mr M Ganesen (instructed by Whitworth Green) appeared on behalf of the Claimant/Respondent.
Mr W Hansen (instructed by HMRC) appeared on behalf of the First Defendants/Applicant.
Mr R Jones (instructed by CPS) appeared on behalf of the Second Defendant/Applicant.
Approved Judgment
Tuesday, 12 November 2013
THE JUDGE:
This is the hearing of an application dated 18 July 2013 by the first and second defendants to strike out, or, alternatively, obtain summary judgment against the claimant in respect of his claim for damages, essentially on the grounds that there is no reasonable cause of action; alternatively, that it would be an abuse of process to allow the claim to proceed; alternatively, that it would be bound to fail, and that they should be entitled to summary judgment.
The history of this claim is undoubtedly convoluted. It derives from a conviction of the claimant, Mr Minshall, on 3 February 2000, when he was convicted on his own plea of conspiracy to fraudulently evade excise duty on alcoholic liquor, contrary to section 170 of the Customs & Excise Act 1979. He was sentenced to 30 months' imprisonment. On 28 February 2000 Newman J, on the application of Customs & Excise, was asked, without notice to Mr Minshall, to make a restraint order under the Criminal Justice Act 1988, which his Lordship did.–I pause here to note that, as in common with many Government departments, the obligations and duties of public bodies have changed frequently over the years, and names have changed as well. It seems to me that there is really nothing in that, and that I can refer to the defendants now, and historically, simply as Customs & Excise. On 13 October 2000 confiscation proceedings were brought to court, and an order was made that Mr Minshall pay the sum of £80,000, with a sentence of 18 months' imprisonment in default.
The claimant appealed the confiscation order, on the grounds that the Crown Court did not have jurisdiction to extend the time limits in the manner that they had procedurally so extended them prior to making their order. The Court of Appeal held that, on the wording of the statute in question, the time limits in question could be extended, and that, it might have been thought, was the end of the matter. However, there were similar cases in the pipeline, and those cases were appealed to the House of Lords, and decisions in respect of those cases were made in the well-known authorities of Soneji [2006] 1 AC 340 and Knights [2006] 1 AC 368. The upshot was that the appeals were dismissed.
In the meantime, the claimant's appeal had been stayed. Of course, his appeal on the time-limit basis fell with the decision of the House of Lords. But in the meantime, the claimant had sought permission to appeal his conviction, based on an allegation of non-disclosure on the part of Customs & Excise. This derives from similar cases in which it was discovered that witness evidence obtained and relied on by Customs & Excise came not simply from a witness, but from an informer who was also, it appears, a willing co-conspirator. This aspect of the evidence had not been disclosed, it appears, to the court or to the trial, and that led to the tainting of those cases in which that evidence had been relied upon. The claimant sought to amend his grounds of appeal to rely on that non-disclosure as justifying the setting aside of his conviction. That application was heard by the Court of Appeal, and permission to appeal was refused on 26 June 2004. The claimant had in the meantime sought also to appeal on grounds of delay in respect of the enforcement of the orders made against him. On 14 February 2006 permission to raise that argument was refused by Rafferty J. On 15 February permission was sought to appeal to the House of Lords. On 16 February 2006 that permission was refused, and on the same date the claimant applied to the European Court of Human Rights, again for permission to appeal against that decision.
Thus matters stood, but, in the meantime, the confiscation order was proceeding. On 20 February 2006, the Revenue & Customs Prosecuting Office applied to enforce the outstanding confiscation order. Understandably, bearing in mind that he still had his application to the European Court of Human Rights pending, the claimant asked for a stay. However, the Prosecution Office refused and brought the matter before the magistrates' court. On 28 August 2006 the magistrates' court heard the application, and at that stage rejected the claimant's submission that to continue with the enforcement proceedings would be a breach of his Article 6 rights under the Convention. The claimant applied for judicial review of that decision, and again for a stay of the enforcement proceedings in the magistrates' court. The Administrative Court refused a stay on 18 December 2006. On 25 January 2007 the claimant was held in contempt of the terms of the restraint order by Langstaff J, and he was ordered to pay the sum of £75,000 within 28 days, which he did. On 4 November 2008 his application for judicial review was heard, permission to proceed having been granted, but was dismissed.
The last stage in this chain of events, pending more recent judicial review decisions, is that on 22 September 2009 the claimant was imprisoned for two days in default of payment of the sums ordered to be paid under the confiscation order. I understand it is common ground that he was, with the assistance of friends, able to raise the necessary money, which was paid, and he was then released.
On 20 December 2011 his application to the European Court of Human Rights was heard, and that court decided that the defendants, who were the prosecuting authorities, were in breach of their obligations under Article 6 of the Convention in view of the excessive length that had been taken to resolve the confiscation proceedings. Those proceedings had lasted from 3 February 2000 to 16 February 2006, when the House of Lords refused permission to appeal. On the other hand, the court held that there was no basis for alleging that the making of the confiscation itself was unfair and in breach of the claimant's Article 6 rights, and it also held that there was no basis for holding a breach of his Article 7 rights that there be no punishment without, in effect, due process of law. The claimant was awarded damages in the sum of £2,000 to vindicate his breach of rights.
It is against that background that the claimant brings his claim in these proceedings. That claim was commenced by a claim form dated and issued on 25 February 2013. The particulars of claim that are annexed is a lengthy document of some 22 pages,with 159 closely-typed paragraphs. It is a document that has been settled by the claimant acting in person, and what it seeks can perhaps be summarised simply by reading paragraph 1 of this document as follows:
"The claimant seeks restitutio in integrum after being unlawfully forced to pay sums of money to the defendants. The claimant also seeks damages for unlawful imprisonment."
Before I look any more closely at the content of the particulars of claim, I will simply note that the defendants defend the claim essentially on the grounds set out in their application to strike out the particulars of claim. As I have indicated, that application to strike out was made on 16 July 2013, and that application was adjourned by consent by order of the court dated 23 September 2013 and comes before me for decision. The only evidence that has been adduced is a lengthy witness statement sworn by the claimant's present solicitor, Mr Roche, dated 7 November, i.e. 5 days ago, and that too runs to nearly 100 paragraphs of closely-typed evidence and argument. It is unfortunate that it was not served earlier, but there it is, and I take it into account.
The first step in considering an application of this sort, as it seems to me all parties who addressed me recognise, is to identify the issues in the case. In view of the nature of the particulars of claim and the supporting evidence, which has obfuscated rather than clarified the issues, that is not an easy task, and can I say at the outset that I have been substantially assisted by the efforts of all counsel in seeking to simplify and define the issues between the parties and the respective cases that they put forward. The basis of the claim is indeed set out as that of restitutio in integrum. It seems to me that that, of course, cannot be a right in itself. Restitutio in integrum is simply a remedy applied by the courts in appropriate circumstances, and it would only be applied where there is a right or a cause of action entitling the court to exercise it. It simply means that the court is putting a person completely in the position he would have been had the wrong not been carried out. So the first question is to identify the wrong. Having considered the particulars of claim and Mr Roche's witness statement, it seems to me to be evident that there are essentially two wrongs being put forward by Mr Minshall in this case. The first is that he wants to be put in the position he would have been in had the enforcement proceedings not taken place after January 2006. Here, the wrong that he identifies is the breach of his Article 6 rights relating to steps taken to enforce the...
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Robert Minshall v The Commissioners for HM Revenue and Customs and Others
... ... I refer to the first respondent and their predecessor bodies as "HMRC" and to the second respondent and its predecessor bodies as "the CPS" ... was unlawful because made in respect of a conspiracy to commit another substantive offence, rather than in relation to the substantive offence ... ...