Solange Hoareau v Secretary of State for Foreign and Commonwealth Affairs

JurisdictionEngland & Wales
JudgeLord Justice Singh
Judgment Date16 May 2018
Neutral Citation[2018] EWHC 1508 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/967/2017, CO/964/2017
Date16 May 2018

The Queen on the Application of

Between:
(1) Solange Hoareau
(2) Louis Olivier Bancoult
Claimants
and
Secretary of State for Foreign and Commonwealth Affairs
Defendant

[2018] EWHC 1508 (Admin)

Before:

Lord Justice Singh

Mrs Justice Carr DBE

CO/967/2017, CO/964/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

APPEARANCES

Mr B Jaffey QC, Mr T Fisher and Mr A Habteslasie (instructed by Leigh Day) appeared on behalf of the First Claimant.

Mr E Fitzgerald QC, Miss A Patrick and Mr P Harris (instructed by Clifford Chance) appeared on behalf of the Second Claimant.

Mr Kieron Beal QC, Miss S Wilkinson, Miss P Nevill and Mr J Bethell (instructed by Government Legal Department) appeared on behalf of the Defendant.

This transcript has been approved by the Judge

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This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

Lord Justice Singh

Introduction

1

These two claims for judicial review are due to be heard by this court later this year. They arise out of a Ministerial announcement made on 16 November 2016.

2

There are now before the court two applications pursuant to Part 54 of the Civil Procedure Rules: (1) an application by the claimants for specific disclosure pursuant to Part 31 of the Civil Procedure Rules; (2) an application by the claimants for further information pursuant to Part 18 of the Civil Procedure Rules. Both applications were set out in a document headed “Consolidated Application” on 13 April 2018. On 3 May the claimants served a number of supplementary requests for further information. On 4 May the defendant served a response to the Consolidated Application together with a further tranche of disclosure. More recently, on 14 May, the defendant responded to the supplementary request in a manner which, we are informed, was satisfactory to the claimants. As a result of these developments and as a result of more recent discussions, the parties have been able to reach agreement on the requests for further disclosure and information.

3

At the hearing before us we have been assisted by Mr Edward Fitzgerald QC for the second claimant, Mr Ben Jaffey QC for the first claimant and Mr Kieron Beal QC for the defendant. We are grateful to all of them, to junior counsel and to the solicitors for each party for the work which has been done in preparation for this hearing. As a result of their diligence and co-operative attitude it has been possible to resolve the outstanding issues in a satisfactory way. This is particularly important in a case such as this one which has a long history and in which there was in the past a failure to disclose relevant documents known as “the Rashid documents”. It was that failure which formed the basis for the application to the Supreme Court in R (On Application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 4) [2016] UKSC 35, [2017] AC 300 to set aside the decision of the House of Lords in Bancoult (No. 2) [2008] UKHL 61, [2009] 1 AC 453.

4

Although the parties have been able to reach agreement in this case, we hope it will still be helpful if we briefly set out what the issues in this case are and the relevant legal principles when the court has to consider an applications for disclosure in judicial review proceedings.

The grounds of challenge and the present claims for judicial review

5

In Hoareau there are seven grounds of challenge for which permission has been granted: (1) unlawful fettering of discretion as to resettlement; (2) the decision as to resettlement was disproportionate; (3) failure to give adequate reasons; (4) the consultation process was unfair; (5) breach of Art.8 and Art.1 of the First Protocol, contrary to the Human Rights Act 1998; (6) conclusions as to the financial support package were irrational; (7) there was a breach of the public sector equality duty in s.149 of the Equality Act 2010.

6

In Bancoult there are three grounds of challenge for which permission has been granted: (1) what is called the “right of abode decision” was unlawful and inconsistent with the requirements of the common law; (2) the resettlement decision was unlawful and inconsistent with the requirements of the common law; (3) the consultation process was flawed in so far as there was a failure conscientiously to consider the responses from Chagossians.

7

We have been informed at the present hearing that there is a proposal on the part of the claimants to apply for permission to amend the grounds for judicial review. That is something for which provision has been made in the agreed terms of a draft order which the parties will file after this hearing.

Relevant legal principles

8

We are grateful to the parties for their skeleton arguments and for their brief oral submissions on the relevant legal principles.

9

In the light of those submissions, the following principles seem to us to be uncontroversial. Disclosure is not automatic in judicial review proceedings. In this respect, judicial review differs from ordinary civil litigation (see PD 54A, Civil Procedure Rules, para.12 which confirms that disclosure is not required in judicial review proceedings unless the court orders otherwise). One reason for this is that the nature of the issues in judicial review proceedings differs from most civil litigation. It is usually both unnecessary and inappropriate for the court to resolve factual disputes. The issues are usually ones of law.

10

That said, factual issues can arise, for example, in deciding what happens when an argument is made that a public authority failed to follow the rules of procedural fairness. Cases under the Human Rights Act may call for a different approach to be taken for the resolution of factual disputes depending on the nature of the issue. Quite often the question of proportionality in a human rights case may require the court to engage in a judgment which calls for an evaluation of the facts to see, for example, whether a fair balance has been struck between the rights of the individual and the general interests of the community.

11

Nevertheless, even in the human rights context it is usually unnecessary for the court to resolve disputes of fact as distinct from forming an evaluation of those facts. In those cases where the court does have to consider whether to order specific disclosure — as the House of Lords made clear in...

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