Robert Tchenguiz and Another v Director of the Serious Fraud Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Vos,Lord Justice Patten |
| Judgment Date | 15 April 2014 |
| Neutral Citation | [2014] EWCA Civ 472 |
| Docket Number | Case No: A2/2013/1816 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 2014 |
[2014] EWCA Civ 472
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIGH COURT OF JUSTICE — QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE EDER [2013] EWHC 1578 (QB)
HQ12X05106 and HQ13X00672
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Pitchford
and
Lord Justice Vos
Case No: A2/2013/1816
Mr Alex Bailin QC and Ms Alison MacDonald (instructed by Shearman & Stirling (London) LLP) for the Appellants
Mr James Eadie QC, Mr Dominic DowleyQC, Mr Simon ColtonandMr James Segan (instructed by Slaughter & May) for the Defendant
Hearing date: 26 March 2014
The issue raised
On 17 May 2011 the appellants, Robert Tchenguiz and R20 Limited, commenced a claim for judicial review against the Director of the Serious Fraud Office ("the SFO") and others in which they sought review of decisions to apply to the Central Criminal Court for search warrants relating to a home and business address, the decision of the Central Criminal Court to grant the warrants, and the decision made by or on behalf of the Commissioner of the City of London Police to arrest and bail Mr Tchenguiz on suspicion of offences of fraud. In parallel proceedings companies associated with Robert Tchenguiz, brother of Vincent Tchenguiz brought similar claims. Mr Vincent Tchenguiz was named as an interested party and subsequently obtained leave to proceed as a claimant. The current appeal only concerns the proceedings instituted by these appellants.
In a judgment of the Queen's Bench Divisional Court (The President, Sir John Thomas and Silber J), handed down on 31 July 2012 ( [2012] EWHC 2254 (Admin)), the court held, among other things, that in making its application for search warrants to HHJ Worsley QC at the Central Criminal Court the SFO had made material non-disclosure and factual misrepresentations which vitiated the grant of the warrants. In the case of these appellants the order sealed on 20 September 2012 (the "Order") provided, so far as material, as follows:
"UPON HEARING [counsel] … the court:
(1) QUASHES the search warrants executed on 9 March 2011 at the claimants' home and business premises … on the grounds set out in the judgment; and consequently,
(2) DECLARES the entries, searches and seizures conducted pursuant to the warrants to be unlawful on the grounds set out in the judgment;
(3) …
(4) TRANSFERS, pursuant to CPR Part 54.20 any actions by the claimants … for damages to a judge to be assigned of the Queen's Bench Division;
(5) ORDERS that there should be a directions hearing for the further conduct of the action before the assigned judge, such hearing to be listed in the usual way during the Michaelmas term 2012 and the claimants shall serve Heads of Claim (so far as they are known) and proposed directions 21 days in advance of the hearing, and the [SFO] shall serve [its] response to those heads of claim and proposed directions 7 days in advance of the hearing. …"
On 19 November 2012 the appellants, pursuant to paragraph 5 of the Order, submitted a document called "Outline Heads of Claim". They pleaded not heads of claim but heads of damage. Nonetheless, in its response of 22 November 2012 the SFO stated, at paragraph 2:
"2. The SFO admits liability for trespass to land in consequence of the order of the Administrative Court quashing the search warrants. It admits a consequential liability for damages for any loss of use of the land sustained by the claimants as a result of the trespass. The SFO denies liability for all other claimed consequential losses."
On 5 December 2012, Eder J gave directions for the further progress of the proceedings. On 4 March 2013 the SFO served its Defence in response to the appellant's Particulars of Claim dated 31 January 2013 (in which causes of action had been pleaded). At paragraph 11 of the Defence, in contradiction of the concession made in its response of 22 November 2012, the SFO pleaded as follows:
" Trespass to land
11. As to paragraph 13:
(1) It is the SFO's case that, although the warrants were wrongly obtained, they were nonetheless valid and effective at the date of the acts complained of; and accordingly afford a lawful justification in respect of any private law claims.
(2) Furthermore, any claim in trespass is barred by the Constables Protection Act 1750.
(3) To the extent that the SFO has previously admitted trespass in paragraph 2 of the SFO's response to Head of Claim and Draft Directions of 22 November 2012 the SFO will, with the permission of the court, withdraw such admission."
On 4 and 5 June 2013 a hearing was held before Eder J to resolve two issues, namely whether:
(1) the principle of res judicata operated to exclude any defence by the SFO to the appellant's private law claim in trespass; and
(2) if not, the SFO should be granted permission to withdraw the concession made in its Response of 22 November 2012.
In a judgment handed down on 14 June 2014, Eder J resolved both these issues in favour of the SFO. In the present appeal the appellants now challenge the judge's decision upon the first issue. No appeal is brought from the judge's decision on the second issue. The essence of the appellants' case is that the declaration made by the Divisional Court at paragraph 2 of its order disposed of the issue of liability for trespass upon the appellants' land in execution of the unlawful warrants. It is, therefore, not open to the SFO to seek to re-litigate the issue in the proceedings transferred to the Queens Bench Division. The only remaining issues in the private law claim by the appellants for trespass are causation and quantum of damages.
Res judicata
It is common ground between the parties that where an issue has been determined between them in one set of proceedings by a court of competent jurisdiction, they are, subject to appeal, bound by the court's decision and may not seek to re-litigate the issue. The estoppel may apply to one or more issues in the proceedings or to the cause of action itself. While it is not necessary for present purposes further to discuss the principle of res judicata, since the SFO accepted before the judge that the conclusions of fact and law made by the Divisional Court were binding on the parties, it seems to me to be an inevitable consequence of the appellants' argument on appeal that the species of estoppel for which they contend is cause of action estoppel. The issue in contention before the judge and before this court is whether either in its judgment or in its order the Divisional Court disposed of the issue of liability at common law for trespass to land.
Monetary claims in judicial review proceedings
By the Senior Courts Act 1981, section 31(4), as substituted by the Civil Procedure (Modification of the Supreme Court Act 1981) Order 2004 ( SI 2004/1033), the Administrative Court may award "damages, restitution or the recovery of a sum due" if "(a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application". However, the provision is procedural in its effect and, it is common ground, does not change the general rule of substantive law that there is no right to damages for unlawful administrative action of itself. The claimant must identify a tortious liability or a right to restitution or recovery of a sum due. Alternatively, the Human Rights Act 1998, section 8, provides the court with power to award damages in breach of Convention rights.
The procedural consequences of the mixed jurisdiction of the Administrative Court are helpfully discussed in De Smith's Judicial Review, 7 th Edition, in chapter 19, at paragraphs 9 and 25. At paragraph 9:
"The CPR part 54 judicial review procedure is not well suited to determining those monetary claims which turn on factual disputes which are more appropriately dealt with by a detailed statement of claim and oral evidence from witnesses subject to cross-examination. In such cases, it may be more convenient for the Administrative Court first to determine the public law issues, and then make an order transferring the issues relating to tortious or other private law liability to proceed as if begun under CPR Part 7. Among other possible ways of determining issues are: the court may award damages at the judicial review hearing but leave quantum to be assessed by a master; where a claim is started in the County Court but it is thought that expertise in public law issues is needed, the case may be transferred to the High Court to be heard by a judge with Administrative Court experience; or a High Court judge with Administrative Court expertise may sit as a judge in the County Court pursuant to section 5(3) of the County Courts Act 1984."
As to the effect of a decision at public law relevant to a private law claim the authors state, at paragraph 25:
"A finding by a court that a public authority, in performing a public function, has breached a ground of judicial review does not of itself provide a basis for entitlement at common law to compensation … To recover damages, a recognised cause of action in tort must be pleaded and proved – such as negligence, the tort of breach of statutory duty, misfeasance in public office, false imprisonment or trespass. So while in some cases it may be a necessary condition, it is never a sufficient one for the award of damages...
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