The Queen (on the application of Robert Palmer) v Northern Derbyshire Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews |
| Judgment Date | 12 November 2021 |
| Neutral Citation | [2021] EWHC 3013 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/3316/2018 and CO/1696/2020 |
[2021] EWHC 3013 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Andrews
Mr Justice Linden
Case Nos: CO/3316/2018 and CO/1696/2020
and
and
David Reade QC and James McWilliams (instructed by Sonn Macmillan Walker) for the Claimant in CO/3316/2018, Mr Palmer
Richard Lissack QC, Andrew Smith QC and Joseph Farmer (instructed by DWF Law LLP) for the Claimant in CO/1696/2020, Mr Forsey
Paul Ozin QC (instructed by Legal Services Directorate, Insolvency Service) for the First Interested Party, the Secretary of State
The Defendant was not represented.
Hearing dates: 11 and 12 October 2021
Approved Judgment
Lady Justice Andrews (giving the judgment of the Court):
INTRODUCTION
This is the judgment of the Court, to which both members have contributed. These claims for Judicial Review concern distinct legal issues arising from the same criminal prosecution, brought by the first interested party (“the Secretary of State”) against the claimants, Mr Robert Palmer and Mr David Forsey. The charges against Mr Forsey and Mr Palmer are that, contrary to s.194 (3) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), as director and administrator respectively of the company, they connived in or consented to a failure by West Coast Capital (USC) Limited (“USC”) to give notice of proposed collective redundancies at USC's warehouse in Dundonald in Scotland in accordance with s.193 (1) TULRCA and/or that USC's failure to give such notice was attributable to their neglect. They have entered “not guilty” pleas. The offences are triable summarily, and an offender is liable to a fine not exceeding level 5 on the standard scale.
Mr Palmer and Mr Forsey challenge decisions of District Judge Andrew Davison, sitting in the Northern Derbyshire Magistrates' Court, on two preliminary issues in the criminal proceedings. The decisions were made in reserved judgments handed down on 29 May 2018 (in the Palmer case) and on 4 February 2020 (in the Forsey case). The criminal proceedings, which began as long ago as July 2015, have been adjourned pending determination of these claims. This is understandable, since if Mr Forsey's claim succeeds, the criminal prosecution cannot proceed in the English courts, and it will be left to the Lord Advocate to determine whether to commence a criminal prosecution in Scotland. If Mr Palmer's claim succeeds, he cannot be prosecuted for an offence under s.194 (3) in either jurisdiction.
The claim for judicial review brought by Mr Palmer was the first in time, and followed an earlier unsuccessful claim brought by Mr Forsey on the basis that the prosecution infringed the Carltona principle (see R (Forsey) v The Northern Derbyshire Magistrates' Court [2017] EWHC 1152 (QB)). Permission to proceed was granted by Nicol J on 18 January 2019. Mr Palmer contends that as an administrator of USC, he cannot properly be made the subject of a prosecution for an offence under s.194(3) because an administrator is not a “ director, manager, secretary or other similar officer” of the company. This argument was referred to before us as “the officer argument.” Mr Forsey was joined as an interested party to the Palmer claim, but made no separate submissions in relation to it.
Mr Forsey's claim was issued on 11 May 2020. He contends that the English Court has no jurisdiction to entertain the prosecution, which should have been brought in Scotland (“the jurisdiction argument”). At an oral hearing on 2 November 2020, Dove J granted permission to proceed, and directed that the claim be linked with Mr Palmer's claim and that both should be heard at a single substantive hearing. Mr Palmer was joined to Mr Forsey's claim as an Interested Party. Mr Reade QC, who appeared with Mr McWilliams on behalf of Mr Palmer, indicated that he supported Mr Forsey's challenge, but he made no submissions which were specific to Mr Palmer's position in relation to the jurisdiction issue.
Before turning to consider the merits of the claims, we wish to make some preliminary observations about the skeleton arguments that were served in both these claims.
Comprehensive case management directions were given in each case, including directions for the filing and service of skeleton arguments. Paragraph 19 of the Administrative Court Judicial Review Guide 2021 helpfully draws the attention of parties to judicial review proceedings to the essential provisions of paragraph 14 of the Practice Direction to CPR 54A relating to skeleton arguments. Paragraph 19.2.2 of the Guide states, inter alia, that a skeleton argument should define and confine the areas of controversy, be cross-referenced to any relevant document in the bundle, and be self-contained. It should not include extensive quotations from documents or authorities ( CPR 54A PD para 14.2(1)).
Paragraph 19.3 of the Guide draws attention to the requirement to obtain the Court's permission to serve a skeleton argument exceeding 25 pages ( CPR 54A PD para 14.3). It emphasises that skeleton arguments should be as short as possible, and states that in most cases there should be no need for the skeleton argument to exceed 20 pages. Paragraph 19.3.6 warns parties that a skeleton argument which does not comply with those requirements may be returned to its author by the Administrative Court Office, and may not be re-filed unless and until it does comply. It also warns them that the Court may disallow the costs of preparing a non-compliant skeleton argument.
Unfortunately in this case, despite that clear guidance, the Practice Direction was not complied with in various respects. All the skeleton arguments exceeded the 25 page maximum — one was over 40 pages long. Another replicated lengthy passages from a textbook (including the footnotes), instead of simply stating the proposition(s) of law for which the book was cited, and providing cross-references to the relevant extracts in the authorities bundle. Versions of the skeleton arguments containing cross-references to the hearing bundles were lodged with the Court too late to be of practical use in our preparations. We had no choice but to use the documents that were already in the core bundles, which we had already marked up by the time the replacement versions were produced.
We recognise that there are cases in which, despite the service of the Statement of Facts and Grounds and Detailed Grounds of Defence, the number, range and/or complexity of the issues involved will justify the service of a skeleton argument which is longer than 25 pages, and in which the Court will find such documents of assistance. However, these cases did not fall into that category. The single issue in the Palmer case is a short point of statutory interpretation which requires consideration of the mischief that Parliament was seeking to address, and of the role and duties of an administrator. There were a handful of relevant authorities. The Forsey case raised three related grounds, the first of which concerned the true characterisation of the nature of the offence, again a matter of statutory interpretation. The second and third were matters of legal principle which, it transpired, turned on consideration of what was said in three authorities, two English and one Scottish.
The Guide and the Practice Direction serve a useful purpose, and we wish to stress how important it is that they be followed. They help the parties to produce documents which assist the Court (and opposing parties) to prepare for a hearing of the claim for judicial review by focusing on what is really in issue.
Admittedly, two of the parties (including the Secretary of State) did seek permission to serve a skeleton argument that was longer than 25 pages, but they did so informally by letter to the Administrative Court office, apparently at the same time as serving the documents in question. By then it was almost certainly too late for the requests to be considered by a judge and, if refused, for shorter documents to be prepared and lodged in time. As a general rule, an application for permission for a longer skeleton argument should be made to a judge as soon as it is anticipated that one will be required. Whilst it is impossible to cater for all eventualities, in the normal course one would expect that to be shortly after the Detailed Grounds of Defence are served.
Although the claim in the Palmer case was the first in time, the jurisdiction issue logically arises first and therefore we will consider the issues in that order. Before doing so, however, we must say something about the legal and factual context in which they arise.
THE LEGISLATION
Introduction
The original impetus for the domestic legislation with which this case is concerned was Directive 75/129/EEC on the approximation of the laws of the Member States relating to collective redundancies. The 1975 Directive was implemented by the United Kingdom in the form of Part IV of the Employment Protection Act 1975. The relevant provisions of the 1975 Act were then replaced by Part IV, Chapter II, of TULRCA and the 1975 Directive was amended by Directive 92/56/EC and then replaced by consolidating Directive 98/59/EC, known as the Collective Redundancies Directive (“the CRD”).
The provisions of the 1975 Act and the 1992 Act have undergone extensive judicial consideration and...
To continue reading
Request your trial
-
R (on the application of Palmer) v Northern Derbyshire Magistrates' Court and another
...Lord Reed, President Lord Hodge, Deputy President Lord Burrows Lady Rose Lord Richards Supreme Court Michaelmas Term On appeal from: [2021] EWHC 3013 (Admin) Appellant David Reade James McWilliams (Instructed by Sonn Macmillan Walker) 2 nd Respondent Paul Ozin KC Georgina Hirsch (Instructed......
-
Robert Nicholas Jason Schofield v Matthew David Smith
...[1991] BCC 165, Re Powertrain Ltd [2015] EWHC 3998 (Ch), [2016] BCC 216 and R (Palmer) v Northern Derbyshire Magistrates' Court [2021] EWHC 3013 (Admin), Mr Smith said that the authorities show that administrators are also 52 For his part, Mr Davies argued that an administrator is impose......