Tovey v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Langstaff |
| Judgment Date | 18 February 2011 |
| Neutral Citation | [2011] EWHC 271 (QB) |
| Court | Queen's Bench Division |
| Date | 18 February 2011 |
| Docket Number | Case No: HQ10X03312,HQ10X03312 |
[2011] EWHC 271 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Langstaff
Case No: HQ10X03312
Jason Coppel (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 9 th. February 2011
Mr Justice Langstaff :
Introduction
On October 6 th. 2005, the Grand Chamber of the European Court of Human Rights issued its judgment in the case of Hirst v UK (C 74025/01), reported at (2006) 42 EHRR 4It found that the UK had violated the rights of the applicant, a serving prisoner, by subjecting him to a ban on exercising the vote during his time in custody which extended to all serving prisoners irrespective of the offence they had committed, the time for which they were imprisoned, and without any court having decided that in the particular case before it a ban on exercising such rights was appropriate. The ban derived from an application of the provisions of s.3 of the Representation of the People Act 1983, to which I shall come later.
In proceedings by prisoners subsequently heard in Scotland ( Smith v Scott [2007] SC 345) Northern Ireland ( R v Secretary of State ex parte Toner and Walsh [1997] NIQB 18) and in England and Wales ( Chester v Secretary of State for Justice and Wakefield Metropolitan District Council [2010] EWCA Civ 1439) the relevant Secretary of State has expressly accepted that domestic statute law which provides that any prisoner, whatever his circumstances, has no right whilst a prisoner to vote is incompatible with the European Convention on Human Rights and Fundamental Freedoms. The court has been told 1 that the government proposes to seek amending legislation in response to the decision in Hirst but has not yet done so, despite the lapse of over 4 years since it was issued.
The Present Claims by Serving Prisoners: Procedural History
The General Election in May last year seems to have brought the grievance of many prisoners denied the vote to a head. On 20 May 2010, Mr. Tovey was the first of a rapidly expanding cohort of prisoners to issue a claim, seeking both damages for being deprived of the vote (to be assessed by the court) and a declaration that his rights under Article 3 of the First Protocol to the Convention had been breached. As at 10.30 a.m. on 9 th. February I was told 585 claims in total had been issued, though this was clarified the next day by letter as being 583, and I was told that around 1,000 further claims are anticipated, since in that number of cases a prisoner has written a pre-action letter warning of his intention to take proceedings unless the wrong is remedied. One of the 583 is Mr. Paul Hydes, the second claimant specifically named in this judgment.
So many cases were issued, in several different court locations, that an application was made by the Treasury Solicitor for an order that all the claims should be transferred to the High Court in London, be consolidated, and for a "lead" case to be identified which the Defendant proposed should be subject to an application to strike out the claim (or alternatively enter summary judgment for the defendant), anticipating that all the other cases in the cohort would stand or fall by the success of the lead case in resisting that application. On 3 rd September 2010 this was granted by Tugendhat J. Mr. Tovey's claim was identified as the lead case, upon the basis that it was the first in time to be made.
On 15 th October 2010 the Defendant served the application. A witness statement from Lisa Marie Fox accompanied it. This set out the grounds for the application.
On 4 th November 2010, Mr. Tovey made an application for funding to permit him representation at the hearing of this application. On 6 th December, he wrote asking that the application be adjourned, since the European Court had just decided the cases of Greens & MT v United Kingdom (Appns. 60041/08 and 60054/08; judgment 23 rd November 2010). No adjournment was ordered. Then, on 6 th. January 2011 Mr. Tovey signed a notice of discontinuance of his claim, which was received by the Treasury Solicitors on 13 th. January 2011.
Mr. Justice Tugendhat directed on 1 st February that the questions whether Mr. Tovey required permission to discontinue, and if so on what terms it should be granted, should be decided at the hearing.
Part 38 of the Civil Procedure Rules provides, under the heading "Right to discontinue claim" (so far as material) that:
"38.2(1) A claimant may discontinue all or part of a claim at any time.
(2) However –
"(c) where there is more than one claimant, a claimant may not discontinue unless –
(i) every other claimant consents in writing; or
(ii) the court gives permission."
The rules therefore provide that unless there is more than one claimant the consent of the court is not required. Discontinuance is as of right. When Mr. Tovey issued his claim, he was alone as a claimant. However, the court on 17 th September 2010 ordered that:-
"any claims that an individual had been denied the right to vote by virtue of s.3 of the Representation of the People Act 2003 (sic) or s.3 of the Representation of the People Act 1983…"
And
"any claim that such denial of the right to vote is incompatible with Article 3 of the First Protocol to the European Convention on Human Rights, as given effect by the Human Rights Act 1998, and that the Secretary of State has failed to respect the rights of the Claimant in that he has failed to implement the Grand Chamber judgment of Hirst v United Kingdom (No.2) and has deprived the Claimant of the opportunity of casting his vote in a secret ballot";
Or
"any claim for damages or a declaration arising out of the same" should be consolidated under case number HQ10X03312 – Anthony Tovey's claim.
The effect of this consolidation is in my view to render Mr. Tovey no longer a single claimant in a single claim. To discontinue therefore requires the consent of the court: rule 38.2(2)(c). This involves reading "claimant" as extending to all those who by consolidation have been allied to the claim under one number. This is a natural reading. It is reinforced, however, by the provisions of Part 1, rule 1.2 (and in particular 2(b)) –
"The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule…"
The overriding objective is set out in Part 1, and provides (so far as relevant to this case):
"(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
Where there is group litigation, or a large number of claims which raise the same core issues, then a test claim may be identified as the cheapest way to resolve those issues. This depends upon it being heard in a manner that best makes for a full consideration of the issues, but without the disproportionate expense, expenditure of additional time, and difficulties for the resources of the courts which hearing a large number of individual claims individually is likely to involve. Individual litigants may have their own reasons for wishing to pursue their claims no further – whether because they no longer have appetite for the argument, or have reached an acceptable accommodation with the opposing party, have lost capacity to sue, or for other more personal reasons. If a test case is to be heard without taking undue time, and expense in doing so, it is likely to be important that the test claimant does not drop out. It may be politic to ensure that where there is a substantial cohort a manageable number of cases is ordered to be heard together to ensure that if one or two "drop by the wayside" the issues at stake may still be argued between those that stay the distance (and here Mr. Hydes was told he was to be at court, and was served with the Defendant's application and Mr.Coppel's skeleton argument so that he was in a position to argue the issues should the court accede to Mr. Tovey's application): unless this happens, then if rule 38(2)(c) were to be interpreted so that where a test claimant with whose claim others had been consolidated issued a notice of discontinuance his claim would automatically end, the vices of additional expense, delay, and disruption to the court timetable would be likely to occur. These considerations fortify my view that the rules should be interpreted to give the court control over the withdrawal or otherwise of a test claimant where there has been consolidation of the claims.
In the event, I allowed Mr. Tovey's application. He had not wanted to come to court. He was not represented, so presentation of the case against that of the Secretary of State depended upon his enthusiasm, preparation, and willingness to engage with the arguments. To bind some 1500 other claims to the result in a case in which he did not wish to participate would potentially be unjust if a reasonable opportunity could have been afforded to another of the cohort to make the arguments instead.
I did not consider that public money and the time of prison officers would be well spent in bringing him to court for the sake of formality when he had no wish to be there or to contribute meaningfully once he was. Effectively to compel his attendance at court to require...
To continue reading
Request your trial