The Queen (on the Application of All the Citizens) v Secretary of State for Digital, Culture, Media and Sport

JurisdictionEngland & Wales
JudgeLord Justice Singh
Judgment Date29 April 2022
Neutral Citation[2022] EWHC 960 (Admin)
Docket NumberCase No: CO/2442/2021 and CO/2912/2021
Year2022
CourtQueen's Bench Division (Administrative Court)
Between:
The Queen (On the Application of All the Citizens)
1 st Claimant
and
(1) Secretary of State for Digital, Culture, Media and Sport
(2) Minister for the Cabinet Office
Defendants
The Queen (On the Application of the Good Law Project)
2 nd Claimant
and
(1) The Prime Minister
(2) Secretary of State for Health and Social Care
(3) Minister for the Cabinet Office
(4) Secretary of State for Business, Energy and Industrial Strategy
(5) Her Majesty's Treasury
(6) Secretary of State for Digital, Culture, Media and Sport
Defendants

[2022] EWHC 960 (Admin)

Before:

Lord Justice Singh

and

Mr Justice Johnson

Case No: CO/2442/2021 and CO/2912/2021

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Ben Jaffey QC and George Molyneaux (instructed by Scott-Moncrieff & Associates Ltd) for the 1st Claimant

Joseph Barrett, Rupert Paines, Jamie Susskind and Raphael Hogarth (instructed by Rook Irwin Sweeney LLP) for the 2nd Claimant

Sir James Eadie QC, Christopher Knight and Ruth Kennedy (instructed by the Treasury Solicitor) for the Defendants

Hearing dates: 22–24 March 2022

Approved Judgment

Lord Justice Singh

Introduction

1

This is the judgment of the court, to which both its members have contributed.

2

These two separate claims relate to the use for Government business of non-Governmental (“private”) communication systems (particularly WhatsApp, Signal and private email). The Claimants' case is that the use of such systems means that public records that should be retained are instead deleted or are otherwise not available to be preserved for the public record. They say that this is unlawful because (a) it is incompatible with a statutory duty under section 3(1) of the Public Records Act 1958 (“the 1958 Act”); and (b) it amounts to an unjustified breach of policy.

3

The public interest in the preservation of certain public records is not in dispute. What is in dispute is whether there is a legal duty, enforceable by judicial review, to create and maintain records so that they are available for posterity, such that it is unlawful to use some modern methods of communication (such as instant messaging with auto-delete functions). This case also raises a legal issue of principle that has significance beyond the particular context of public records: to what extent are government policies enforceable as a matter of public law?

4

At the hearing we had submissions from Ben Jaffey QC for the First Claimant (All the Citizens or “AtC”), Joseph Barrett for the Second Claimant (Good Law Project or “GLP”) and Sir James Eadie QC for the Defendants. We are grateful to them all, and their teams, for their written as well as oral submissions.

Procedural issues

5

There is a number of procedural issues which arise, some of which are not the subject of dispute. It was agreed at the start of the hearing that we would determine such issues as were in dispute after the hearing in this judgment.

Discontinuance of claim by GLP against HM Treasury

6

CPR 38.2(3) provides that, when there is more than one defendant, the claimant may discontinue “all or part of a claim against all or any of the defendants.” It does not need the permission of the court to do so but CPR 38.2(1) requires that a claimant must file a notice of discontinuance and serve a copy on every party to the proceedings. Discontinuance takes effect on the date that the notice is served on the defendant: CPR 38.5.

7

At the start of the hearing the Defendants complained that the claim by GLP against HM Treasury had not been pursued but there had been no formal application to discontinue it. We directed that GLP must file a formal notice of discontinuance withdrawing its claim against HM Treasury. We noted that the Defendants submit that costs therefore follow automatically upon discontinuance of that claim. We reserved this matter to a later stage, so that costs can be dealt with compendiously. This does not prevent the Defendants from maintaining their submission that costs follow automatically.

Application by AtC to re-amend its grounds

8

There is an application by AtC for permission to re-amend its grounds. In the main there is no objection by the Defendants. The point which is in dispute is the application to add three new Defendants to the claim and the potential consequence for the costs capping order. The original Defendants to the claim by AtC are, first, the Secretary of State for Digital, Culture, Media and Sport; and, secondly, the Minister for the Cabinet Office. AtC applies to add the Prime Minister, the Secretary of State for Health and Social Care and the Secretary of State for Business, Energy and Industrial Strategy.

9

There are two rules for adding a defendant party to a claim. The general rule is CPR 19.2(2). The court may order the addition of a defendant when either it is desirable to resolve all matters in dispute (19.2(2)(a)) or there is an issue involving the new party connected to the dispute (19.2(2)(b)) and it is desirable to add them. Alternatively, there is a specific rule in CPR 19.5(2) which applies after the end of a relevant limitation period. Under 19.5(2), the addition of a defendant must be “necessary” as defined in 19.5(3): the claim cannot properly be carried on against the original party unless the new party is added as a defendant. The procedure for adding a party is set out in r.19.4. In summary, the court's permission is required and the application must be supported by evidence.

10

AtC submits that its application to amend satisfies either limb (a) or limb (b) of CPR 19.2(2). The Defendants contend that CPR 19.5 is the applicable provision, as the application is made outside the three month limitation period for judicial review proceedings and argue that the “necessity” requirement of that provision is not met; and, in any event, it should fail if considered under CPR 19.2, as it would create in effect new proceedings, nor are the matters connected.

11

As to the limitation argument, it is not self-evident that the limitation period in judicial review proceedings (specified in CPR 54.5) falls within any of the provisions to which CPR 19.5 applies, that is a period of limitation under (a) the Limitation Act 1980 (plainly not) or (c) “any other enactment which allows such a change, or under which such a change is allowed”.

12

We do not grant this application by AtC to add three new Defendants. As we understood it, the main purpose of doing so would be to ensure that any remedy granted by this Court is binding on those parties as well as the original two Defendants. In view of the conclusions we have reached below, the issue of remedy will not arise, as we do not consider that there has been any breach of public law in this case. The substantive issues of public law which arise can be determined without adding the three new Defendants.

Application by GLP to amend its grounds

13

There is an application by GLP to amend its grounds, to most of which there is no objection. The one point which is in dispute is whether they should have permission to rely on a document entitled ‘Private Office Papers Guidance’. We grant permission to do so. In our view, the interests of justice would be served by considering all the material in the round. We cannot see that this will cause prejudice to the Defendants, since they have been able to deal with the merits of the issue.

Application by the Defendants to adduce further evidence

14

On behalf of the Defendants there was an application to adduce the second witness statement of Lorraine Jackson. No objection was taken to this by either Claimant and so we granted permission at the hearing and formally record that here.

The ‘Potemkin’ argument by GLP

15

GLP's first ground of claim, as set out in the Claim Form, included an allegation that the Defendants adopted a practice or policy of “conducting Government decision making and record keeping by ‘fake’ or ‘Potemkin’ meetings and records, which do not record the true reasons for Government decisions.” ‘Potemkin’ refers to the sham villages in Crimea said to have been built by Grigory Potemkin in the 18 th century to impress Catherine the Great. The allegation is explained in the grounds of claim. It is that officials create sham documents and hold sham meetings (where participants follow a script) so as to create a fake paper trial that can be used to defend subsequent claims for judicial review.

16

The Defendants responded to this allegation in the grounds of resistance and in the evidence that was filed. In GLP's Skeleton Argument no mention was made of the Potemkin claim. Sir James Eadie QC inferred, correctly as it turned out, that the claim had been silently abandoned. At the hearing he complained that this should not have been left to inference and that GLP should have made it clear that the point was abandoned. Mr Barrett said that there was no ground for complaint: it was clear from the absence of reference to the issue in the Skeleton Argument that it had been abandoned, and the Defendants could have asked for clarification.

17

We consider that there is force in the complaint. It should not be left to parties (or, for that matter, the court) to have to infer, from omissions in skeleton arguments, what grounds of claim have been abandoned. If a party no longer pursues a ground of claim, that ought to be made clear to the court and to the other parties. To do otherwise is inconsistent with the obligations to:

(1) help the court to further the overriding objective (which includes identifying the issues at an early stage): see CPR 1.3 and 1.4(2)(b);

(2) ensure that the skeleton argument defines and confines the areas of controversy (CPR Practice Direction 54A, para. 14.2(1), and Administrative Court Judicial Review Guide 2021, para. 19.2.2).

18

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