HH Judge Anthony Thornton QC:
Introduction
- This is an appeal with the permission of Deputy Master Rose from his order made on 19 August 2010 when he struck out the claimants' claims against the defendant as an abuse of process pursuant to CPR 3.4(2)(b). The claimants claim damages for false or wrongful imprisonment or detention and, cumulatively or additionally, damages for breaches of their Convention Rights provided for under article 5 for their detention in Yarlswood Immigration Centre between 27 May 2008 and 22 July 2008. The Deputy Master's decision, which is one based on the exercise of procedural discretion, should only be set aside if it is shown that he exercised that discretion perversely, or that he exercised it on the basis of a significant error of law or of a demonstrably significant error of fact or that he took into account significant factors which he should not have taken into account or he failed to take into account significant factors which he should have taken into account. The claimants start this appeal, however, with the advantage of a finding in their favour by the Deputy Master that this appeal has a real prospect of success since he granted the claimants permission to appeal from his decision.
Procedural matters
- I should first deal with three procedural matters. The first matter relates to the claimants' application issued after they had issued their notice of appeal dated 31 August 2010. This second application sought an order from a judge of the Queen's Bench Division that the appeal should be transferred to the Court of Appeal. Cooke J refused the application on the grounds that the appeal did not raise a sufficiently important point of principle or practice to satisfy the threshold test set out in CPR 52.14 for it to be transferred to the Court of Appeal without first being decided by a single judge of the Queen's Bench Division. Moreover, the judge held that there was no other compelling reason for such a transfer, particularly as the questions of principle raised by the appeal were bound up with questions of fact which needed to be spelt out by the first appeal court before any question of a hearing of an appeal by the Court of Appeal should be considered.
- The second matter relates to the defendant's application dated 24 January 2011 to serve a respondent's notice out of time. This notice was served shortly before the listed date for the appeal. It was contended that it would not cause the claimants any prejudice if the defendant was permitted to rely on the additional grounds it set out in order to uphold the order made at first instance, particularly as it was also contended that these additional grounds were a development of grounds that had been raised, although not in any detail, at that first hearing but were not referred to in the Deputy Master's judgment. The application was not opposed and I granted permission.
- The third matter relates to the claimants' application dated 31 January 2011 to rely on fresh evidence that was not before the Deputy Master in order to be able fully to address the additional grounds that the defendant sought to rely on. The defendant did not object to this additional evidence being deployed at the hearing of the appeal and I granted permission.
Summary of relevant law of wrongful detention and of BA's claims in the judicial review proceedings.
- False imprisonment, or as it is called in the immigration field, unlawful detention, is a tort which occurs when a claimant is subject to his or her complete deprivation of liberty without lawful excuse. In the immigration field, such deprivation is authorised for, amongst others, persons subject to removal directions pending their removal[1]. This power is limited by the principles usually called the Hardial Singh[2] principles. These were set out by Dyson LJ (now Lord Dyson) in his judgment in R (I) v Secretary of State for the Home Department[3] as follows:
(i) The Secretary of State must intend to deport that individual and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of that reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to continue to exercise the power of detention; and
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
- The power to detain is also limited by the policy guidance publicised by the Secretary of State contained in what was, at the time of the claimants' detention, The Operational Enforcement Manual. This covers, in respects relevant to these claimants, guidance on procedures to be followed before any detention decision is taken and enforced, particularly with regard to families and young children, and the approach to be adopted with regard to the detention decision. Since detention should be linked to what is reasonable and to whether deportation or removal will be capable of being effected within a reasonable time, regard had also to be paid to the published guidance as to whether and what treatment to protect against malaria and TB should be provided to the deportees in applicable cases and to what liaison there should be with the receiving state's health facilities with regard to on-going treatment for those suffering from HIV. In assessing whether the detention was lawful in the light of these principles, the court has to apply an objective test as to whether the defendant has exercised all reasonable expedition to effect removal. The burden of proof to establish this rests with the defendant. If it appears, following an investigation of these matters, the detainee is entitled to damages at common law for the tort of unlawful detention. Where the circumstances of the detention display particular hardship amounting to a significant failure to comply with the law or to exercise reasonable skill and care, aggravated damages may be claimed and where the detention amounts to oppressive or arbitrary behaviour or an abuse of power, exemplary damages may be claimed. However, if the claimants would still have been detained had correct and approved procedures been followed, even though they had not been followed, the defendant will only be liable for reduced or nominal damages. If the detention was unlawful, the claimants may also claim damages under article 5(4) of the ECHR. However, the award under this head must be proportionate and must take account of damages awarded under the tortious principles related to unlawful detention.
- Since detention is related to the prospect of immediate removal, those who are detained are subject to removal directions and, in many cases, to proceedings or judicial determination of grounds on which the removal directions may be set aside since forced or compulsory removal is only permitted where it is subject to such directions. The only way that such directions may be set aside is by recourse to judicial review and, in seeking an appropriate order quashing removal directions, these must be shown to be unlawful. Usually, the directions can only be shown to be unlawful if they have failed to give effect to the claimants' articles 2, 3 or 8 rights, have failed to take account of submissions lodged on their behalf or fail in some other way to comply with the law. If a claimant has previously had any type of Asylum and Immigration Tribunal[4] hearing at which his claims have been dismissed, he may only succeed in mounting a second claim in reliance on those facts if it can be shown that the claim is a fresh claim as defined by the Immigration Rules. Such a claim is one which substantially relies on fresh facts and which has reasonable prospects of success before an Immigration Judge. If the defendant determines that the claim is not a fresh claim, that negative decision may be the subject of judicial review in an attempt to have the defendant's dismissal of the fresh claim set aside and reconsidered so as to obtain a second First Tier Tribunal (Immigration and Asylum Chamber) hearing at which the deportation decision can be challenged.
- It follows that claims for damages for unlawful detention are separate from claims seeking to challenge removal directions. Unlawful detention can occur whether or not the removal directions are open to challenge and it is neither necessary nor sufficient, in order for a claimant to claim or obtain damages for unlawful detention, to secure an order for his release from detention or for the setting aside of removal directions.
Summary of relevant Administrative Court and Queen's Bench Division procedures.
- Judicial review, a public law remedy, is only available in the Administrative Court[5]. It is the only available remedy to a claimant such as BA who seeks to have quashed or set aside what is alleged to be an unlawful decision of a public body which adversely affects that claimant. The relevant remedy in this case, a quashing order, may include an ancillary claim for damages but a claimant is not permitted to bring a claim for damages by way of judicial review unless it is linked to a mandatory public law remedy or a claim for a declaration that a decision or other action of a public body is unlawful. If the relevant act or decision of the public body is withdrawn or is no longer effective prior to any decision of a court, the public law claim relating to that decision becomes academic. Thus, if removal directions are withdrawn by the defendant prior to a court quashing them is made, the Administrative Court will not permit a public law quashing remedy to be pursued any further.
- Actions in the Queen's Bench Division are ones in which private law claims are brought and in which a claimant claims damages or other related relief from a defendant, whether a state body or a private individual. A claim for damages for the tort of unlawful detention is an example of this kind of private law claim and it is clearly established that such a claim may be brought in the Queen's Bench Division or the County Court. With growing frequency in recent years, particularly since the implementation of the Human Rights Act, a public law issue will arise, and must be determined, as part of a private law claim for damages. For example, in determining whether detention was unlawful, the court must determine whether the actions of public officials were unlawful in detaining, or continuing the detention of, the claimants. In such cases, no quashing order is needed if the claimants have, before trial, been released from detention and all that is sought is an award of damages for unlawful detention. However, to grant such an award, the court must first decide whether or not the defendant had reasonable grounds to detain the claimants. This is essentially a public law decision. It is now clear that such decisions may be made by the judge deciding the private law action and as part of that action, albeit that any determination of the unlawfulness of the detention complained of will involve a consideration of public law. This determination may be made as part of the private action because the public law issue is whether damages should be awarded for the unlawful decision of a public body that has adversely affected the claimant rather than whether a public law quashing remedy should be granted.
- If, however, a claimant remains in detention, he can only secure his release if he can obtain a quashing order in a judicial review application that the detention decision was unlawful. If a quashing order is claimed, the claimant may also claim damages in the judicial review proceedings for any unlawful detention that is shown to have occurred. However, if no quashing order or other public law remedy is sought or available in relation to the detention decision because the claimant is no longer detained or because any judicial review claim on which a damages claim could be parasitic is not claimed or is not capable of being granted or is dismissed, the claim for damages must be sought from a judge in a private law action[6].
- If a quashing remedy was initially sought with a claim for damages in judicial review proceedings and the claimant is subsequently released before a court has granted that public law remedy, the Administrative Court may in practice continue to determine the damages claim as a private action using Administrative Court procedures although the action has become one that is entirely a private law action. This practice is not expressly provided for in the CPR. In order to comply with the statutory prohibition that precludes damages claims not linked to a public law remedy being brought as a judicial review claim, the artificial claim for a declaration that the detention was unlawful must be claimed in such cases. This course, even if it is permissible, should not be followed where the factual basis of the damages claim is complex or requires extensive investigation and the cross-examination of witnesses. In addition, the court may, instead of trying the private law claim within the procedure of CPR 54, transfer the claim to the Queen's Bench Division or the County Court for it to continue as a private law action to be determined using private law procedures. Alternatively, the public law action may be withdrawn or not proceeded with and a fresh private law action may be started that claims damages for the tort of unlawful detention and for breaches of article 5 of the Human Rights Convention. Whichever of these various procedural routes is taken, the Queen's Bench Division or the County Court tries the private law damages claim is subject to the limitation provisions applicable to tort and negligence claims.
- Two significant features of judicial review that are relevant when considering what procedural route should be followed. The first is the short time limits within which a judicial review claim may be issued, which are much shorter than the relevant time limits for private law claims. Since a private law for unlawful detention may, by statute, be brought up to six years after the cause of action has accrued, the right to bring such a claim cannot be cut down by requiring such a claim to be brought within 3 months of the relevant unlawful actions giving rise to the unlawful detention by a judicially imposed procedural requirement that such actions must be brought as judicial review actions in the Administrative Court under the procedure set up by CPR 54. The second feature of judicial review concerns the initial permission stage in a judicial review claim which is used to filter out unmeritorious claims. This filtering procedure is not available in private law actions in the Queen's Bench Division. The permission stage involves the claimant serving grounds of claim. These should contain sufficient material to enable the defendant to identify what the claim is about. The defendant, if it wishes to defend the claim, should then serve an acknowledgement of service and summary grounds of defence. The parties will usually, in immigration cases, also serve particularly crucial documents with their respective documents setting out their grounds. At that stage, the papers are placed before a judge to consider, on paper, whether the claimant has an arguable case. It is noteworthy that the claimant does not usually have, at that stage, an opportunity to serve a reply document. The judge will refuse permission if no reasonable prospect of success is revealed by the grounds and other documents that have been served. It is possible for the claimant who has been refused permission to renew the application at an oral hearing at which the claimant is permitted a short period, usually restricted to thirty minutes, to show that permission should be granted. The defendant may, and usually does, appear by counsel and is permitted a very brief oral reply. It follows that a party's detailed case, particularly one which is heavily factually based, is sometimes not capable of being put forward satisfactorily at the permission stage because there has not yet been any detailed disclosure of documents or evidence. If permission is granted and the judicial review takes place at a full hearing, the parties must provide full disclosure of relevant documents and may serve witness statements. The range of discovery that is permitted at this stage will often be less than could be required in a Queen's Bench Division action and no cross-examination or oral evidence is permitted at the hearing. This procedure is, therefore, far less satisfactory than the applicable private law procedure for any claim which involves significant disputes of fact or where justice requires there to be significant discovery and the oral examination of factual and expert witnesses.
- It is worth noticing that there has grown up recently a range of judicial review cases which involve an initial determination of precedent fact, for example the age of a child asylum seeker, which must be determined before that claimant's claimed entitlement to various child welfare and educational facilities can be considered. These factual disputes, often involving extensive disclosure, experts' reports and oral evidence, have to be determined by the Administrative Court within a wider judicial review hearing even though the dispute is not readily susceptible to CPR 54 procedures. Since the establishment of the Upper Chamber, such judicial review disputes may now be transferred by the Administrative Court to be determined by the Upper Tribunal to be decided at a trial using conventional tribunal procedures appropriate for disputes of fact[7]. This procedure enables factual disputes to be more readily determined within a judicial review. They will invariably involve an extensive factual investigation involving issues of credibility, extensive disclosure, the use of several experts' reports and the need for oral evidence including cross-examination. However, a case such as this, in which the sole claim is for private law damages for unlawful detention following a decision made under the Immigration Acts, is not one that the Upper Tribunal has jurisdiction to consider[8].
General overview of relevant procedural law.
- These procedural considerations are relevant to this case. BA initially applied unsuccessfully to the defendant to set aside removal directions that she had been served with and she also made a further application for leave to remain which remained unconsidered. In the subsequent two judicial reviews, she sought a quashing order of the removal directions, particularly relying on the alleged failure of the defendant to consider her further application for leave to remain and on failures by the defendant to give her and her children necessary medical treatment that they needed to prior to being removed. As a result of these alleged failures, she also sought an order requiring the defendant to consider her further application for leave to remain. These applications were heavily dependent on articles 2, 3 and 8 of the ECHR as these related to her and to each of her three children. Like any claimant in her situation, BA was not confined to one application to the defendant for leave to remain. As is customary in her situation, she continued to lodge submissions supporting and elaborating on her claim after it had been submitted and the defendant, as it invariably does, addressed these submissions piecemeal during the early stages of the judicial review proceedings. As is also not uncommon, BA lodged two judicial review applications, each of which challenged a different set of removal directions and different decisions issued by the defendant in relation to her applications and submissions. Thus, in order to determine what claims were joined into her judicial review proceedings, it is necessary to consider the procedural history of these proceedings with some care. This involves considering the various applications and submissions made by BA to the defendant and the defendant's decisions in relation to those applications and submissions as well as the grounds on which BA applied for judicial review on both occasions and the grounds of defence lodged by the defendant.
- In undertaking this review, it is necessary to keep in mind that BA's applications for judicial review of the removal directions and for consideration of her further applications for leave to remain involve a consideration of factual issues which also separately arise in her claims for damages for unlawful detention. That will not, of itself, make the subsequent private law claim an abuse of process. It is only if, taking all relevant factors into account, the defendant can show that BA is using the separate private law action for "a purpose or in a way significantly different from its ordinary and proper use"[9] that the subsequent private law action would amount to an abuse of process.
Factual background to claimants' claims
- Asylum, humanitarian protection and article 8 claims. The first claimant, BA, is the mother of the other three claimants and she was aged nearly 31 at the time of her detention. Her children's names and their ages at the date of their detention are BB aged six, BC aged five and BD, aged two months. All four claimants are citizens of the Republic of Cameroon. BA with BB and BC unlawfully entered the United Kingdom on 24 October 2006 and, when arrested by West Yorkshire police, BA claimed asylum and humanitarian protection for herself and her two children. Asylum was refused on 6 December 2006.
- The only evidence in the hearing bundle of the basis of the claimant's claims for asylum, humanitarian protection and for the protection of her article 8 rights in late 2006 or of the basis of her fresh claims dated 3 June 2010 are contained in BA's brief summary of her grounds set out in sections 5 and 8 of her first judicial review claim form. These grounds show that BA was alleging that she had been persecuted by members of the Government and their state agents in Cameroon for political reasons and that she risked further similar persecution if she was returned to Cameroon. Her persecution involved her in being subjected to degrading and inhuman treatment and to being raped by these state agents. In support of these grounds, she contended that her persecutors remained in the Government so that it would be impossible for her to relocate safely within Cameroon if she was returned there.
- AIT appeal. All four members of the family were provided with NASS accommodation. The claimant appealed to the Asylum and Immigration Tribunal and this appeal was dismissed on 16 March 2007. A reconsideration was ordered as a result of an error of law in the original decision and the appeal was again dismissed at a second stage reconsideration hearing.
- First set of removal directions. On 29 January 2008, the defendant decided to issue removal directions for BA, BB and BC. These had not been preceded by a pastoral visit and it is not known what enquiries were made by the defendant about the family or their respective states of health. It would appear that the removal directions were not coupled with detention decisions and they were served on the claimants without prior warning. However, they were withdrawn soon afterwards because the claimant's appeal rights were not exhausted until 7 February 2008. The defendant then discovered that BA was in the advance stages of pregnancy and decided that she could not be removed until after her child had been born. BD was born on 27 March 2008. There is no evidence in the hearing bundle as to the identity of BD's father nor whether he has any immigration status in the United Kingdom.
- Second set of removal directions. Removal directions for all four claimants were again set on 22 May 2008 to take effect on 2 June 2008. The decision to issue these directions was coupled with a decision to detain the claimants immediately. The removal directions and the detention decisions were served on BA in the early hours of 27 May 2008 when enforcement officers arrived at the claimants' home without prior warning and detained all four claimants and immediately transported them to Yarlswood Immigration Centre ("Yarlswood"). These directions, like the first set of removal directions, had not been proceed by a pastoral visit and it is also not known what enquiries were made by the defendant about the family or their respective states of health before the decision to issue them was taken. Possibly unlike the first set of removal directions, they were coupled with detention decisions and both the removal directions and the detention decisions were served on the claimants without prior warning notwithstanding BA's HIV status, the uncertainties of whether BB, BC and BD were similarly HIV positive and the recent birth and state of health of BD. Thus, the family group comprising BA and her two very young children, and one infant who had just been born, having been in England for nineteen months and having left Cameroon in very distressing circumstances were being taken into detention with the intention of removing them permanently to Cameroon, with no prior warning of this detention or of this particular removal, in the early hours of the morning and with no prior opportunity to pack or prepare for this ordeal.
- First judicial review. Soon after arrival at Yarlswood, BA contacted a firm of solicitors, Fadiga & Co, who specialise in immigration and asylum work and whom she had been referred to by a charity who provide advice to those in Yarlswood who are on the point of being removed. BA was able to instruct Mr Hani Zubeidi and his evidence, set out in a witness statement, was that he was instructed by and represented BA solely in relation to her immigration matter, namely her claims to avoid removal from the United Kingdom and to secure her release from detention. Mr Zubeidi stressed that he was only instructed on behalf of BA and was not additionally instructed on behalf of BB, BC or BD. Moreover, he was never instructed in relation to any other claims, including those involving medical problems.
- On 30 May 2010, BA, having been advised by Mr Zubeidi, succeeded in faxing to the Administrative Court office in the Royal Courts of Justice a hand drafted judicial review claim form with a typed copy of her short grounds. These grounds had obviously been drafted by Mr Zubeidi and were annexed to the claim form but, presumably because of the shortage of time, the claim form had to be filed by BA as a litigant in person. The claim sought orders requiring her fresh asylum claim to be considered and the granting of refugee status to her. The lodging of this judicial review claim and its receiving a "CO" or Administrative Court number, as is standard practice, caused the second set of removal directions to be withdrawn pending the determination of BA's application for permission to apply for judicial review. Fadiga & Co prepared BA's fresh asylum claim dated 3 June 2008 which was immediately submitted to the defendant along with an unparticularised human rights claim to the effect that her removal would constitute a breach of article 8 as it would interfere with both her family and private life. The defendant refused these claims in two letters. The first, issued under paragraph 353 of the Immigration Rules on 6 June 2008, dismissed the asylum claim and determined that it was not a fresh claim and the second, dated 10 June 2008, dismissed the article 8 claim. The defendant also served grounds of defence to the judicial review claim on 13 June 2008.
- Cranston J refused BA's application for permission to apply for judicial review on 19 June 2008. The refusal decision stated that the application for judicial review was no more than an attempt to reargue what had already been considered and then rejected by the AIT, that the unparticularised article 8 claim had been dismissed by the defendant in a way that gave rise to no public law error, that the defendant was entitled to treat BD in the same way as BA even though she had been born in the United Kingdom and that the fact that BA was suffering from AIDS did not engage article 3. It followed from this decision that permission to apply for judicial review had been refused because the papers did not disclose any prospect of success in obtaining an order setting aside the defendant's decision to issue removal directions or relief to enable her to be granted asylum or leave to remain on human rights grounds.
- Further submissions. In the light of the defendant's refusal decision dated 19 June 2008, BA's solicitors served a series of submissions on the defendant seeking to persuade it not to issue further removal directions or to remove the claimants on the grounds of the ill-health of all four claimants. The initial submissions, dated 20 June 2008, claimed that none of the four claimants was fit to travel. These relied on BA's HIV status and the lack of appropriate arrangements for her treatment to be continued in Cameroon on her return. There had, for instance, been no reported contact with any HIV treatment centre in Cameroon as provided for in the defendant's HIV Guidelines. They also contended that BB and BC were still in the process of being screened to determine whether they were HIV positive and that that process should be concluded before they travelled. Finally, they contended that BD was too ill to travel and, further, that her Malarial Prophylaxis anti-maleria treatment and BCG anti-TB immunisation treatment, both of which she desperately needed to avoid being infected with malaria and TB on arrival in Cameroon, had not been completed.
- Third set of removal directions. Meanwhile, the defendant issued a third set of removal directions on 23 June 2008 which were served on BA in Yarlswood. These provided for the claimants' removal on 2 July 2008.
- On 30 June 2008, BD's condition was worsening and she was admitted to hospital and seen by Dr Paturi, a Consultant Paediatrician at Bedford General Hospital. He diagnosed BD as having a milk protein intolerance. This visit had been arranged by Yarlswood's Health Care Centre because removal directions were due to take effect on 2 July 2008. As a result of this visit and Dr Paturi's diagnosis, BA contends that it was or should have been clear to the defendant that BD was suffering from milk protein intolerance and required Nutramigen feed and a follow-up appointment in the paediatric clinic on 7 July 2008 when consideration would be given to the need for any further treatment for her gastroenteritis, her outstanding five-in-one immunisations, her outstanding HIV screening, her necessary BCG vaccination (if this was appropriate in the light of her medical condition) and her outstanding Malarial Prophylaxis treatment. BA contends that it was on account of all these medical problems that the defendant withdrew the third set of removal directions.
- Fourth set of removal directions. Fadiga & Co's first set of submissions were refused by the defendant on 3 July 2008. The defendant then issued a fourth set of removal directions on 4 July 2008 for the removal of the claimants on 21 July 2008. There is now much dispute as to the reasonableness of issuing these directions and particularly the fourth set of directions. The claimants' case is that Fadiga & Co had made further submissions before the decision was taken to issue the fourth set of directions which, when taken with what the defendant and the operator of Yarlswood (whose knowledge is to be imputed to the defendant) already knew or should have known, given their duty of care for BD, meant that it was unlawful to issue removal directions at that point or for the foreseeable future. This was primarily because BD was very ill with gastroenteritis and malnourishment as a result of her recently diagnosed milk protein intolerance for which she was undergoing treatment under Dr Paturi. When, and only when, her condition had stabilised, she then required a long and sequential series of steps related to her outstanding HIV screening, five-in-one immunisations, BCG vaccinations and Malarial Prophylaxis treatment. These steps needed to be completed before she could travel to Cameroon, if she was to be removed at all. BD's complex medical situation had been considered by three consultant paediatricians, namely Dr Paturi, Dr Steve Jones and Dr Lessof, an associate specialist in gastro-urinary medicine, a general practitioner and an infant feeding specialist. This advice and the consequent reports had been reported to the defendant and to Yarlswood and had been considered by them. These reports have since been supplemented by a medical report from Dr McCarron dated 24 November 2008. The claimants contend that, notwithstanding this wealth of medical advice that the defendant had considered coupled with the knowledge that the Health Care Centre had gained from almost daily contact with the family which was fully reported on in the Centre's medical notes, the defendant decided to remove the family as soon as possible to Cameroon.
- The defendant disputes these contentions in their entirety. Its overall contention is that it had no access to the Yarlswood Health Care Centre's records for reasons of confidentiality. The defendant relied on the advice of a nurse within the Health Care Centre to the effect that BD was healthy and that the only reason for her and BC not having been treated with Malarial Prophylaxis was that this had been refused by BA and BC on all six occasions that it was offered. Reliance was also placed on the contents of a letter of a General Practitioner, Dr Beeks, who saw BD on 29 June 2008 and who found her temperature to be normal as was her condition on general examination. The claimant refutes these contentions by pointing to the wealth of expert medical opinion which the defendant could and should have taken account of, to BD's medical notes which the defendant did not consider, to the refusals being based on medical opinion that there should be no anti-malaria treatment until the HIV status of BC and BD had been ascertained and to the inadequacy of the report of one brief GP's examination when taken against the whole weight of the other medical evidence.
- BA's solicitors then wrote to the defendant on 11 July 2008 with further submissions and asked that their earlier submissions dated 20 June 2008 should be treated as a fresh claim pursuant to paragraph 353 of the Immigration Rules.
- BA's solicitors' drafted yet further submissions on 16 July 2008 and served these on the defendant who received them on 22 July 2009. They provided further and fuller evidence and submissions as to why none of the four claimants was fit to travel. The evidence was contained in, and the submissions relied in part on, a brief report from Dr Nick Lessof, Consultant Paediatrician at the Starlight Children's Unit at Homerton University Hospital, London dated 11 July 2008. The submissions referred to BD's severe medical complaints which rendered her unfit to travel to Cameroon. These were, in summary:
(1) Her illness since her arrival at Yarlswood which caused her severe gastroenteritis, diarrhoea, vomiting and dehydration which were probably caused by an intolerance to milk protein;
(2) The lack of necessary Malarial Prophylaxis treatment which she had not been administered, probably because of her illness;
(3) The lack of a necessary BCG vaccination needed to immunise her from TB which she could currently not undergo because of her gastroenteritis;
(4) The need, as an infant born of an HIV positive mother, to undergo a course of HIV tests which had started but were still on-going; and
(5) The need for a two-month, three-month and four-month five-in-one injection which needed to be administered before she travelled but which could not be administered until she had had her third HIV test when she was three months old.
- Second judicial review. Having sent three submissions with no apparent success in removing the immediate threat of removal, Fadiga & Co hurriedly drafted and filed BA's second judicial review claim on 18 July 2008. The claim sought a judicial review of the removal directions set on 4 July 2008 and a stay of removal pending the defendant's consideration of the two unanswered sets of submissions and their supporting medical opinion relating to BD's medical treatment. The relief sought in the prayer was:
(1) A quashing order quashing the decision to set removal directions;
(2) A declaration that the decision to proceed with removal set out in the defendant's letter dated 3 July 2008 was unlawful; and
(3) Such further or other relief as the court finds fit.
- The grounds set out why it was necessary for BD to be provided with Malarial Prophylaxis treatment before she travelled to Cameroon and a BCG vaccination and the severe risk to her life and health from the high risk of being orphaned soon after her return as a result of her mother, BA's, low life expectancy due to her HIV status.
- The grounds added this as ground 2:
"It is submitted that the defendant has acted against its own policy by failing to release [from] detention by letter dated 3 July 2008, which is contrary to the medical opinion served."
This ground was not advancing a separate public law claim based on an allegedly unlawful decision to detain BA. Instead, it was supporting the claim that the fourth removal directions decision was unlawful and should be quashed because that decision unreasonably disregarded the Consultant Paediatrician's advice that BD needed several more months' medical treatment in England before she could safely be considered for removal. In consequence, the family should be released in the meantime.
- The second judicial review claim form was filed on Friday 18 July 2008 and was served on the defendant on the same day. The defendant responded to the claim in a letter dated Saturday 19 July 2008 by refuting it on the grounds that BC had been offered Malarial Prophylaxis on four occasions on 28 and 30 May and 5 and 19 July and that these offers had been declined and it was offered for BD on 5 and 19 July 2008 and that these offers were also declined. The claimants' case is that the offers were declined because they had been advised that BC should not be treated with Malarial Prophylaxis until her HIV tests had been completed and BD until she had fully recovered from gastroenteritis and her HIV tests had been completed.
- The claimants' removal date had been fixed for late July 2008 but the defendant withdrew the fourth set of removal directions on Monday 21 July 2008. The claimants were released from detention on 22 July 2008 and were provided with NASS accommodation in Stockton-on-Tees.
- The defendant has subsequently asserted that these removal directions were withdrawn solely because it had discovered that the escorts booked to escort the claimants to Cameroon needed visas but these had not been acquired, or possibly had previously been acquired and had become outdated and invalid. This seems an improbable reason. Moreover, since a decision was still awaited on the claimants' new claim dated 11 July 2008 and since the claimants have still not been removed from the United Kingdom, it is clear that the fourth set of removal directions would have been withdrawn and would not subsequently have been reinstated even if the escorts had been in possession of valid travel visas at that time.
- Stay of and subsequent refusal of permission to apply in relation to second judicial review. On 30 July 2008, BA instructed Mr Adam Hundt of Pierce Glynn to act for her and, separately, for BB, BC and BD in the claims that they wished to bring in relation to their claims for damages for unlawful detention and for the inadequate medical treatment received by BD whilst she was in detention. Mr Hundt contacted Mr Zubeidi to ensure that there would be no overlap between his work representing them in their damages claims and Mr Zubeidi's work in relation to their immigration claims. Both of them have stated in their respective witness statements that it was agreed that since BA and her children had been released from detention, Mr Zubeidi would concentrate exclusively on, and continue to challenge, the defendant's decision to remove BA whilst Mr Hundt would advise and represent all four claimants in their claims for damages for unlawful detention and inadequate medical treatment.
- The defendant had been served with the judicial review proceedings on 18 July 2008. Some weeks later, it proposed to Fadiga & Co that these proceedings should be stayed to allow it to determine BA's fresh claim dated 11 July 2008 before it served an acknowledgement of service of the judicial review claim and detailed grounds of defence. This proposal was accepted and it was given effect to by a consent order dated 1 October 2008 which the parties signed and lodged with the Administrative Court. The order appears to have been entered by the Administrative Court without it having been seen by a judge of the court. This order provides:
"BY CONSENT, IT IS ORDERED:
1. The present application for judicial review be stayed for 28 days from the date of this Order for the Defendant to respond to the Claimant's submissions dated 11 July 2008;
2. That the Claimant shall have 21 days from this date to make any amend[ment to] their grounds of challenge if appropriate;
3. That the Defendant shall have a further 21 days to serve an Acknowledgement of Service for consideration by the Court as soon as possible after this date."
- The defendant provided a decision dated 24 October 2008. This considered the submissions that Fadiga & Co had submitted that had not previously been determined, being those dated 20 June 2008 and 16 July 2008, and dismissed them and then determined that they did not constitute a fresh claim within paragraph 353 of the Immigration Rules so that there could be no further appeal to the First Tier Tribunal. Neither the submissions being considered nor the decision letter addressed any complaint to the effect that the claimants had been unlawfully detained. The only complaints about the treatment provided for BD that were addressed in the letter were those referred to in the submissions which were put forward exclusively as grounds why the removal directions should be set aside and why asylum and leave to remain should be granted.
- The claimant did not serve any amendment to her grounds of challenge following service of the decision letter and a consent order was issued on 6 January 2009. This order is not in the trial bundle but it presumably extended time for BA to serve any amendment. Pursuant to that order, Fadiga & Co informed the defendant in a letter dated 12 January 2009 that, with reference to the defendant's letter of 24 October 2008:
"We would like to take this opportunity to confirm reliance is maintained on the original set of grounds 'seeking move' (sic) and note the claimants concerns as follows: …".
The letter then noted three concerns, or objections, to particular findings of fact set out in the defendant's letter.
- The phrase 'seeking move' in this sentence has no obvious meaning. However, whatever was being referred to could not have included a reference to claims based on unlawful detention or inadequate medical treatment because no such claims had been made in the second judicial review claim. The three concerns set out in the letter were, in effect, amended grounds since they were responses to particular passages in the defendant's letter which were permitted by the consent order. None of these concerns included a reference to a damages claim for unlawful detention. Thus, the judicial review claim continued to exclude any claim for damages for unlawful detention or inadequate medical treatment.
- The defendant then served its acknowledgement of service which addressed each ground of claim in detail. The only reference to a claim for unlawful detention is set out in paragraphs 15 and 16:
"Failure to adhere to detention policy
15. The defendant submits that detention of the claimant and her family was at all times in accordance with the relevant policies and procedures. It is well accepted that detention is appropriate where removal is imminent. Following the failure of the removal directions set for 21 July 2008, the claimant and her family were released from detention on 22 July 2008.
16. During detention, the Claimant and her family's circumstances were reviewed weekly to ensure that detention remained appropriate. The claims in relation to the claimant and her family's medical conditions were fully considered and it was determined that detention remained appropriate (see defendant's letter dated 20 June 2008)."
- In context, since BA was not making a claim for damages for unlawful detention and unsatisfactory medical treatment, these passages could only have been addressing the claimant's claim that the removal directions should be quashed with the consequent release of the claimants. However, both claims were now academic since the removal directions had been withdrawn and the claimants had been released from detention.
- The papers were then placed before Cranston J for a decision as to BA's still outstanding permission application. In accordance with Administrative Court procedure, her legal representative was not given any opportunity to serve a rebuttal of the allegations contained in the defendant's grounds of defence document or to place before the judge much of the relevant background documentation. Cranston J refused the permission application in a decision dated 20 March 2009 in these terms:
"The claim is an abuse of process. The grounds mention malaria and TB. Yet the letter from Nurse Emma Kelly demonstrates that the claimant and her family were offered malaria prophylaxis on a number of occasions and have refused it. The Secretary of State was entitled to act in accordance with the objective evidence about treatment for TB in Cameroon. I have read the letters of both Dr Lessof and Dr Jones but they do not address the legal issues now before me. There can be no objection to the earlier detention."
- The claim that Cranston J had found to be abusive was the second judicial review claim as it stood in March 2009. In other words he had found that the bringing of a second judicial review seeking the identical relief to the first, which had sought to reverse the decision of the AIT, without putting forward any new grounds was an abuse of process. This was, therefore a finding that was confined to the applications to set aside the removal directions and to reconsider the claims for leave to remain. The comment did not relate to a claim relating to unlawful detention since that claim was not being made in the judicial review proceedings. The comment that there could be no objection to the earlier detention could not have related to a damages claim based upon the earlier detention being unlawful because no such claim and no such allegations were being made in the second judicial review proceedings. Even if a claim based on an allegation of unlawful detention had been made in the second judicial review proceedings, the decision to refuse the entire permission application was still inevitable since BA's judicial review claim had become academic because the removal directions had been withdrawn and she had been released from detention. On that basis, the claim as it stood on 20 March 2009, when Cranston J's decision was made, was an abuse of process. Moreover, he was also making a finding to the effect that there could be no objection to the earlier detention since BA was no longer in custody.
- The claimants' claim for damages. Pierce Glynn, following their appointment on 30 July 2008 to act for the claimants in a claim for damages, prepared a very detailed letter before action dated 10 March 2009. This letter was received by the defendant a few days before Cranston J's decision to refuse BA's permission application in the judicial review proceedings. When no answer had been received, the claim form, setting out the case for damages for unlawful detention and treatment whilst detained, was issued on 26 May 2009. Following a further unsuccessful wait for an answer to the letter before action, the claim form was served but the defence, including the contention that the claim amounted to an abuse of process, was not served until 10 January 2010 and the reply was served soon afterwards. The application to strike out was issued soon after the reply was served on 25 March 2010.
- The claim is based on the premise that each claimant was unlawfully detained throughout the whole period of their detention. This illegality occurred because the initial decision to detain (or decisions if a decision to detain was taken prior to the service of the first set of removal directions) was unlawful and all subsequent decisions to confirm the continuation of detention were also unlawful. In particular, no or insufficient attention was paid to the available information about the claimants' background and about their medical, psychiatric and psychological conditions or to the significant deleterious effects of detention on each of them. This unlawfulness occurred because each decision was taken in significant disregard of the relevant facts of their conditions or to the applicable provisions of the defendant's Operational Enforcement Manual. Complaint is also made about both the medical care and the lack of medical care throughout the period of detention that occurred in a number of ways, particularly with regard to BD. The consequences of these failures, and hence of the unlawful detention, are claimed to have been significant. The physical, mental and psychological health of each of the four defendants deteriorated. Furthermore, their rights to family and personal life and their statutory and common law entitlement not to be detained except in accordance with the law were all infringed. The causes of action relied on are the tort of unlawful detention; breaches of statutory duty; breaches of their articles 5 and 8 rights; breaches of the duties of care owed to them by the Health Care Centre and other staff and oppressive and arbitrary conduct of public servants undertaking public duties.
- The defendant denies each strand of each claimant's and the defendant expressly puts BA's credibility in issue. In particular, the defendant contends that each decision it took was properly informed and each conformed to the relevant provisions of the Manual. Detention was necessary, reasonable and proportionate at all times because the claimants were to be removed within a reasonable timeframe. The claimants had been offered voluntary repatriation repeatedly and each offer was refused. The defendant therefore had no alternative but to remove each claimant and detention was, throughout, a reasonable and necessary adjunct to effecting that removal. The claimants did not suffer any, or any significant ill health of any kind as a result of any lawful or unlawful acts or omissions of the defendant, they were not reported as suffering from ill health at any time and there was no failure to provide necessary treatment or medication or, if there was, that failure arose because of the first, second and third claimants' refusal to take the proffered medication or to permit it to be administered to the fourth claimant. All breaches of each duty alleged to have been broken are denied.
- These rival contentions cannot be fairly tried, and no determination can be made about them, until both sides, and in particular the defendant, give full disclosure of all relevant documents including all medical records and has then prepared and served witness statements. It is also difficult to envisage a trial without each witness being cross-examined and without expert medical and psychiatric evidence being prepared, adduced and cross-examined.
Abuse of Process
- Defendant's submissions. The defendant's abuse of process allegations are pleaded in paragraph 1 of its defence. These were fully deployed in the detailed written skeleton and oral submissions of its counsel, Mr Robert Kellar. The contentions may be summarised in this way:
(1) The claimants' claims are ones that may be brought as judicial review claims. By bringing them as private law claims in the Queen's Bench Division, the claimants have been able to circumvent the special procedural requirements of a judicial review claim, particularly the need for promptness, the permission-application screening process which screens out hopeless claims, the simplified procedure which significantly reduces the burden of providing discovery and eliminates cross-examination of witnesses, a shorter and cheaper trial process and the determination of claims with a public law element to them by specialist judges who have experience of applying public law concepts when determining claims against public bodies. To circumvent the judicial review process on these grounds is, therefore, an abuse of process. In support of these contentions, the defendant relies on general principles that are said to have been confirmed by Opuku v Principal of Southwark College[10], Clark v University of Lincolnshire[11] and Carter v Commercial Developments and another[12].
(2) In any event, the present claims should have been brought within the ambit of the second judicial review.
(3) The claims are an attempt to re-argue both sets of judicial review proceedings and, in particular the second set of proceedings. These claims are, therefore, an attempt to re-argue a case which failed when permission was initially refused by Cranston J and which failed again when permission was refused, again by Cranston J, in the second set of judicial review proceedings. Not only did Cranston J describe the second set of proceedings as an abuse, he also made findings to the effect that the claimants' detention was lawful.
(4) The present claims are brought by the same four claimants whose judicial review claims were dismissed as being without merit.
(5) The principles established in the Opoku case should apply. Thus, there have been no changes in the claimants' circumstances nor any other good reason to entitle the claimants to circumvent the adverse findings on the same issues that are now raised that were made by Cranston J in the second judicial review proceedings in particular.
- The Deputy Master struck out the claims by applying contentions (2), (3) and (5). The defendant, having served a cross-notice, seeks to uphold the Deputy Master's order and to further support it with contentions (1) and (4).
- Claimants' submissions. The claimants dispute all the defendant's contentions. In summary, in reply to each contention, it is contended:
(1) There is no principle that demonstrates that proceedings, particularly claims for damages for false imprisonment, must be brought by way of judicial review. The claimants are entitled, in an appropriate case of which this is one, to the full panoply of a Queen's Bench Division trial procedure and, in any event, the Administrative Court procedure may not be used for claims in which the only claim is one for damages (Dexter v Vlieland-Boddy[13] and ID v Home Office[14]) Furthermore, any such restriction would amount to an unjustifiable and disproportionate restriction on the access to the court by the claimants (Societe Levage Prestations v France[15] and Sunday Times v United Kingdom[16]).
(2) No authority is cited for the proposition that the damages claims should have been brought within the ambit of the judicial review proceedings and that proposition runs counter to the Dexter and ID cases and to the general principles governing striking out for abuse of process.
(3) The proceedings in the Administrative Court raised different issues to those now raised in the Queen's Bench Division action. The present claims cannot, therefore, be said to amount to harassment or oppression (Dexter and University of London v Tariquez-Zaman[17]).
(4) The first claimant's claims that were dismissed as being without merit were different claims and made with significantly less relevant evidence than the present damages claims. The second, third and fourth claimants were not parties to the judicial review proceedings and, even if they were, the proceedings brought in their name were a nullity since no litigation friend had been appointed and any belated after-the-fact application for permission to appoint a litigation friend would probably have failed (Masterman-Lister v Brutton & Co[18]).
- The claimants also contend that there has been a considerable change of circumstances between the second judicial review proceedings and the Queen's Bench Division action. In particular, there is now much more evidence available, the claimants' removal directions have been withdrawn and have not been reinstated, they have been released from detention and are they are now confined to a claim for damages which the Administrative Court has no jurisdiction to deal with. Moreover, had the Administrative Court been considered to be the appropriate forum, the defendant should have notified the claimants of this on receiving the claimants' letter before action since, had they been promptly notified of this view, the first claimant could have renewed her application for permission and would have been in time to apply to join these additional claims and claimants into the second judicial review. That application would have been in time. However, had it been made, it would have failed in any event because the damages claim would have stood alone since all BA's public law claims had been withdrawn or were academic and were therefore hopeless and would not be proceeding. The application would, therefore have been one to add a private law claim for damages. Such claims may not be brought as a judicial review claim since damages may only be claimed or awarded in judicial review proceedings when the claim is ancillary to a public law claim or award[19].
Contention 1. It is abusive to bring the wrongful detention claims as Queen's Bench Division claims rather than as judicial review claims.
- Defendant's particular submission. On behalf of the defendant, it was acknowledged that it was not, in principle, objectionable for a claimant to pursue a private law remedy for damages arsing from unlawful detention. However, such private law claims are subject to the court's overriding general power to case manage cases and to strike out those claims that amount to an abuse of process. Having made that obvious concession, the defendant nonetheless contended that it would ordinarily be an abuse of process for a claimant to proceed by way of a private law unlawful detention claim for damages. When a claimant wished to bring such a claim in a situation where the unlawful detention allegedly arose from the unlawful actions of a state official or public authority, they had to be brought as a public law action by way of judicial review and an ancillary claim for damages. Support for this general submission was sought from the following situations and cases: where the claim was dependent on impugning the decision of a public authority (O'Reilly v Mackman[20]); where the effect of the claim being brought as a private action was that the claimant was able to circumvent the short judicial review time limits (Clark's case); where a Part 8 claim was brought in the Administrative Court seeking a declaration when such a claim should have been brought by judicial review and where, in any event, the relief sought was for an ulterior purpose of pursuing a private commercial action and not for the purpose of quashing a public law decision of a public body (Carter's case); where it is desirable for the case to be determined by an Administrative Court judge (ID's case) or where a previous judicial review claim had failed and a second private law action was started that pursued a claim based on the same facts (Opoku's case).
- Discussion. O'Reilly's case was the principal case that was relied on. This case was decided in 1983 at a time when the modernisation process of judicial review remedies was in its infancy and before the Human Rights Act had been thought of. Lord Diplock gave the leading speech and his statement of principle was as follows:
"… it would as a general rule be contrary to public policy, and as such, an abuse of process of the court to permit a person seeking to establish that a decision of a public authority to infringe his rights of which he was entitled to protection under public law to proceed by way of an ordinary action and by this means evade the provisions of O.53 for the protection of such authorities.[21]"
- This statement of general principle has been significantly eroded since 1983 and it was tactfully referred to by Lord Woolf in Clark's case in 2000 as follows:
"The emphasis can therefore be said to have changed since O'Reilly v Mackman."
By 2000, the Rules of the Supreme Court had been replaced by the Civil Procedure Rules. In consequence, as Lord Woolf went onto explain:
"Similarly if what is being claimed could affect the public generally the approach of the court will be stricter than if the proceedings only affect the immediate parties. It must not be forgotten that a court can extend time to bring proceedings under O.53. The intention of the CPR is to harmonise procedures as far as possible and to avoid barren procedural disputes which generate satellite litigation.
What is likely to be important when proceedings are not brought … [under the judicial review procedure] will not be whether the right procedure has been adopted but whether the protection provided by [the judicial review procedure] has been flouted in circumstances which are inconsistent with the proceedings being able to be conducted justly in accordance with the general principles contained in Part 1. Those principles are now central to determining what is due process ….[22]"
The implementation of the Human Rights Act in 1999 has gradually led to a further evolution of the modern judicial review procedure. It is now frequently the case that an issue of public law, particularly one involving the question of the validity of a decision or policy of a public authority, may be raised to support or to defend a private law claim in a private action, particularly when that issue involves consideration of a claimant's right that is protected by the European Convention on Human Rights. In the field of the unlawful detention of those subject to immigration control, this evolution has been given effect to in ID's case.
- I will set out an extensive citation from the judgment of Brooke LJ which identifies this evolution. The case involved a claim for damages for unlawful detention brought by illegal immigrants who alleged that they had been wrongfully detained. They brought their claim in the County Court in tort and under article 5 of the ECHR as a private action and their sole claim was for general, aggravated and exemplary damages. The Home Office sought to stay the claims on the grounds that these claims should have been brought as judicial review claims so that the private law claims were an abuse of process. In dismissing these submissions in a lengthy, authoritative and compelling judgment, Brooke LJ included these relevant observations:
"1. The Claim made in the County Court
1. By the Amended Particulars of Claim in this action the claimants claimed:
(i) a declaration that the Home Office had acted incompatibly with their Convention rights, and in particular those arising out of Articles 2, 3, 5, 8 and 14 set out in Schedule 1 to the Human Rights Act 1998 ("the 1998 Act");
(ii) a declaration that the Home Office had wrongfully discriminated against them contrary to section 29 of the Sex Discrimination Act 1975 and/or sections 19B and/or 20 of the Race Relations Act 1976;
(iii) damages for false imprisonment;
(iv) damages for negligence;
(v) aggravated and/or exemplary damages.
2. On 28th February 2003 the Home Office applied for an order striking out and/or awarding summary judgment in their favour in relation to all the claims set out under (i), (ii) and (iii) above, other than the claims which related to their Convention rights under Article 14 of the European Convention on Human Rights ("ECHR") and the claim which related to section 19B of the Race Relations Act 1976. District Judge Lightman struck out this application. Judge Crawford Lindsay QC, in allowing the Home Office's appeal, granted them the relief they sought. On 27th May 2004 Laws LJ granted the claimants permission to appeal to this court as a second appeal, observing:
"I consider that the appellants may face a very uphill struggle; but the relation between (1) administrative detention under the immigration legislation, (2) the tort of false imprisonment, and (3) Article 5 of the ECHR is fit for examination in the Court of Appeal and this is an appropriate case for that to be done." …
47. It is unnecessary to refer in any detail to the contents of the defendant's strike-out application. I have summarised its effect in para 3 above, and I will be referring to their different arguments when I come to address the merits of the appeal. In short, it was being said that the claimants were detained in accordance with statutory powers. They could not therefore complain of false imprisonment, and in any event the initiation of proceedings in the county court represented an abuse of process. The application also contained contentions to the effect that there was no reasonable prospect of success in relation to the claims which the defendants were seeking to strike out, and that the ECHR Articles 2 and 5 claims did not disclose a cause of action known to English law. (Amendments were made to the language of those two claims before the defendants' application was heard). …
58. It should be noted in this context that although CPR Part 54 now permits the Administrative Court to award damages in addition to other relief on an application for judicial review, it has no jurisdiction to entertain a claim for damages alone (see CPR 54.3(2)).
103. I do not consider that it is necessary to dwell for very long on Mr Catchpole's contention that it was an abuse of process for the claimants to have brought this claim for damages for false imprisonment in the county court, thereby allegedly circumventing the safeguards of the judicial review regime. I must emphasise that this was a complaint about the choice of initiating process: it is always possible for a circuit judge to direct the transfer of part of a private law action to the High Court for trial by a judge with Administrative Court experience if this is thought desirable on case management grounds.
104. It is greatly to be hoped that complaints of this kind about procedural exclusivity may fall away under the CPR regime, for the reasons given by Lord Woolf MR in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at paras 25-27 and 32-39. In particular, he said at para 39 that the relevant question was not whether "the right procedure" had been adopted, but whether the protection provided by what was still at that time RSC Order 53 had been flouted in circumstances which were inconsistent with the proceedings being able to be conducted justly in accordance with the general principles contained in CPR Part 1. "These principles are now central to determining what is now due process," he said.
105. I have no doubt at all that if these proceedings are viable, they are properly brought as a private law action. I have already shown (see para 58 above) that the Administrative Court has no jurisdiction to hear an action for damages alone. There are no facilities whereby a jury may be empanelled in the Administrative Court to try an action for damages for false imprisonment (see s 66(3)(b) of the County Courts Act 1984 and s 69(1)(b) of the Supreme Court Act 1981), and contested actions involving a human rights element often require cross-examination which is more conveniently provided for outside the Administrative Court list. In R (Wilkinson) v Broadmoor Hospital Authority[23], Hale LJ said at para 62 that it should not matter whether proceedings in respect of forcible treatment of detained patients were brought by way of an ordinary action in tort, an action under section 7(1) of the 1998 Act, or judicial review: see also Simon Brown LJ at para 24, and R(P) v Home Secretary[24].
106. I would add that the evidence of the interveners suggests that compensation for unlawfully detained asylum-seekers will be hard to come by within the strict time limits required by CPR Part 54, given the severe difficulties over legal representation in those detention centres and prisons where such representation is not readily available on the spot. To restrict access to justice by insisting on proceeding by way of CPR Part 54 in a damages claim would in such circumstances amount to the antithesis of the overriding objective in CPR Part 1.
107. I have already noted how in false imprisonment claims a judge in the county court will already have to apply Wednesbury principles in deciding whether a police officer's discretionary decision to effect an arrest was a reasonable one. Recent authority in this court includes not only my judgment in Paul[25] but also the judgment of Latham LJ in Cumming v Chief Constable of Northumbria Police[26] in which he held at paras 43-44 that ECHR Article 5 did not require the court to evaluate the exercise of discretion in any different way from the exercise of any other executive discretion, although it must do so in the light of the important right to liberty which is at stake. See also Boddington v British Transport Police[27] in which Lord Steyn said at p 172:
"The rule of procedural exclusivity does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision."
108. There is, incidentally, nothing in the judgment of Lord Woolf CJ in R (Anufrijeva) v Southwark LBC[28] to suggest that the county court is not an appropriate forum for a damages claim of this kind which includes a human rights element, especially when part of it has to be litigated in the county court in any event (compare the decision of Collins J in Andrews v Reading BC[29]).
109. Mr Catchpole [counsel for the Home Office] advanced a number of sound reasons why cases of this kind, if they are viable at all, should be entrusted to a judge with Administrative Court experience, at any rate until matters settle down and clear principles emerge from the case law. He was on less secure ground, however, when he suggested that the Civil Procedure Rules do not enable courts in private law actions to sieve out misconceived challenges just as effectively as the permission stage of the judicial review process, and his floodgates arguments contained an echo of those deployed unsuccessfully by his Home Office clients in the House of Lords in ex p Leech[30]. If an immigrant has been deprived of his liberty by unlawful executive action, he should not be denied access to the courts by recourse to floodgates arguments for the mandatory compensation to which he is entitled in respect of his false imprisonment."
- I was not referred to a recent decision of the Court of Appeal in Trim v North Dorset District Council[31]. In that case, the claimant had started an action in the Queen's Bench Division seeking a declaration that an unlawful use had started more than ten years before the service of an enforcement notice. If that length of use could be established, the claimant could not be enforced against. However, the claimant had already applied to the defendant for a certificate of lawful use which it had refused on the grounds that the established use being enforced against had not started more than ten years previously. This decision was appealed and a planning inspector dismissed the appeal, finding that the start date of the use was less than ten years before the date of the enforcement notice. The Court of Appeal held that the action was an abuse of process on two related grounds. Firstly, the action sought to undermine the public law decision of the defendant and of the planning inspector. That was the exclusive purpose of the action. Secondly, the claimant had a public law remedy if he wished to challenge the inspector's decision. This was by way of an appeal to the Administrative Court.
- Conclusion – contention 1. This case is, therefore, very similar to ID and very different from O'Reilly, Trim and the other cases cited on behalf of the defendant. In particular, the claimants are seeking a private law remedy which is not capable of being brought by way of judicial review and which, as the Court of Appeal in ID has held, it is both possible and not abusive to bring as a private law action in the Queen's Bench Division or the County Court. Moreover, the procedure adopted by the claimants was not adopted for any ulterior purpose of evading procedural safeguards available in public law cases nor to avoid an alternative available public law remedy or an unfavourable decision in a public law claim. The decision in Trim therefore supports the approach in ID and provides further support for the claimants' contentions in this case.
- I would only add to this analysis of the applicable procedural considerations for a damages claim for unlawful detention that a claimant seeking damages flowing from alleged unlawful immigration detention not only faces severe procedural difficulties resulting from the need to find and rely on legal representation whilst in detention, but also faces severe funding difficulties as well. Invariably, a potential claimant in such a case is involved in an immigration dispute where judicial review is being sought as well as in the potentially different and additional dispute involving a claim for damages. Such a claimant is invariably without personal financial resources and is also invariably unable to speak English fluently, is vulnerable and is often suffering from the long-term effects of ill-treatment, poor living conditions and other personal difficulties experienced before his or her arrival in the United Kingdom. I was informed by Mr Southey QC, counsel for the claimants, who has considerable experience of representing claimants in the immigration field and in related claims, that public funding for representation in judicial review claims seeking to set aside removal decisions, when it is available, does not extend to a damages claim for wrongful detention. A wrongful detention claim is subject to a different public funding arrangement. Given the Legal Services Commission's tendering process and the manner in which that body awards funding contracts to solicitors, it will usually be necessary for a potential claimant to find and instruct different solicitors with the different speciality involved in representing clients in private law claims for damages before that claimant can start what then has to be fresh private law action for such a claim.
- It is clear, therefore, that there is no objection to the claimants seeking damages in a private law action. The claims are claims in tort and they also rely on their entitlement to claim damages for alleged breaches of, and in consequence of, article 5 of the ECHR. They also, possibly, give rise to claims in negligence for breaches of duties of care owed to each claimant in relation to their physical, psychiatric and psychological health. These private law claims are only susceptible to a stay or peremptory order stopping them from being pursued to trial if they can be shown to be an abuse of process after a detailed consideration of its particular facts.
Contention 2. Abusive not to bring wrongful detention claim in same proceedings as the claims brought in the judicial review claims.
- For the same reasons that Contention 1 is unsustainable, Contention 2 is also unsustainable. There is no basis for contending that, on the complex facts of these cases, a separate and successive private law claim for damages is abusive.
Contention 3. Abusive to seek to relitigate claims or issues already litigated and found to be abusive and without merit.
- I will summarise the reasons advanced to support the contention that the damages claims are an abuse of process are unsustainable.
- Reason 1 - The damages claim seeks to relitigate the judicial review proceedings. It can be seen from the detailed review of the issues raised by the judicial review proceedings, that they did not involve any claim for unlawful detention and, in particular, any claim for damages for unlawful detention or for the mistreatment or negligent care of the claimants whilst they were detained. The decisions being challenged in the judicial review proceedings were decisions to issue removal directions and the unlawful actions of the defendant in failing to consider, or sufficiently consider, BA's renewed applications for leave to remain in reliance on asylum and human rights grounds. The grounds did not refer to the various decisions to detain the claimants or to review and to maintain the detention decisions nor to any medical mistreatment nor to any claim for damages. The only reference to detention was ancillary to the claim for the quashing of removal directions and was to the effect that, once the removal directions were quashed, the claimants should be released as a consequence, particularly so as to enable them, and BD and BC in particular, to obtain necessary medical treatment. Moreover, once the claimants had been released, that particular ground fell away in any event since it had become academic. Although there was some overlap of factual issues in the judicial review proceedings and the private law action, this overlap was very limited.
- Furthermore, neither the claimants nor the defendant had provided any relevant discovery relating to the unlawful detention issues since this discovery was not needed for the determination of the claims to quash the removal directions. The relevant and disclosable material in this case is both extensive and potentially significant. This is because of the extensive and complex history relating to the claimants' medical conditions and their treatment and to the myriad of decisions taken by the defendant that related to their medical treatment and their detention and the claimants have not yet had the opportunity to fully consider or to deploy that material.
- Reason 2 - The claimants should have deployed the damages claim in the amended grounds that they were to serve pursuant to the consent order signed by the parties. This reason is not made out on five separate grounds:
(1) The parties, in their consent order, were only permitting BA to advance additional grounds arising from the defendant's decision set out in the letter dated 11 July 2010 which related to her fresh asylum and human rights claims. The parties did not agree to allow BA to advance a fresh claim for damages for unlawful detention, which had not previously been submitted or included in the judicial review claim. This is because they could not agree to such a course without obtaining the leave of the court, having considered the terms of the proposed amendment, to amend the judicial review claim in this way.
(2) The claimants would not have obtained leave to add such a claim even if it had been advanced since, by the time it would have been added, it would have been the only claim being made since the claimants were no longer in detention and their fresh claim had been considered and determined. This remaining claim would have been solely for damages so that it could not have been brought as a judicial review claim.
(3) The claimants were entitled to a private law claim procedure.
(4) The claimants had good reasons for bringing separate proceedings related to the funding restrictions imposed by the applicable schemes for public funding and the lack of relevant practising experience of their immigration solicitor in pursuing private law claims for damages for unlawful detention.
(5) The objection to a private law action, if it was to be advanced, should have been made by the defendant promptly after receiving the letter of claim that set out the damages claim in great detail. Had the objection been made at that time, it would still have been possible for the claimants to make a renewed application for judicial review and to amend the judicial review claim. However, the objection was only first made with the service of the defence many months later.
- Reason 3 - The claimants are seeking to circumvent the three-month time limit imposed by CPR 54 for judicial review proceedings. The answer to that is that the claimants are entitled to choose a private law claim with its own relevant period of limitation notwithstanding that, in certain circumstances the claimants could have claimed damages for unlawful detention in judicial review proceedings[32]. They have a statutory entitlement to bring such claims within six years of the cause of action arising and that right cannot be removed by a procedural decision that the claim should have been brought as a public law claim with its very short time limits. Such a practice would amount to a denial of access to the courts in relation to the claimants' claims based on their unlawful detention. Moreover, even had they wanted to claim damages for unlawful detention in the judicial review proceedings, the claimants could not have done so. Had the damages claims been joined into those proceedings from the outset or had an application been made to join them when the second set of proceedings was amended in November 2008, the claims would have been struck out or would not have been permitted to continue by way of amendment since the underlying judicial review proceedings were not permitted to proceed and had in any event become academic once the claimants were released from detention. Moreover, the damages claim could only have been added with permission since the consent order permitting the judicial review proceedings to be amended without permission did not extend to new claims in tort and, in any event, the damages claims are too factually complex and require extensive discovery and cross-examination of witnesses so they would not have been allowed to proceed in the Administrative Court.
- Reason 4 - The claimants claims have already been found to be abusive. Cranston J. found the second judicial review proceedings abusive in the light of the AIT decision and the first judicial review proceedings. Since the damages claims formed no part of any of these three separate processes, this abuse finding did not cover or relate to the claimants' damages claims.
- Reason 5 - Cranston J found that the defendant was not acting unlawfully in failing to release the claimants in its decision letter dated 3 July 2008. The decision letter dated 3 July 2008, was not provided with the trial bundle. However, it is clear that that decision related to submissions dated 20 June 2008 to the effect that the removal directions should be set aside because the claimants were not fit to travel at that time so that, in consequence, they should be released. The decision dismissed these submissions, found that the claimants were fit to travel and, in consequence they were not released. This was not a decision to release from detention but a decision refusing to set aside removal directions. When finding that "There can be no objection to the earlier detention", Cranston J was addressing ground 2 of the judicial review application which only addressed the submissions dated 20 June 2008 and the consequent decision dated 3 July 2008. The finding is confined to that limited ground and is not related to any claim based on the unlawful detention of the claimants over the whole period of their detention. This reason is not made out.
- Contention 3 – Conclusion. None of the reasons urged in support of the contention that the damages claims were an abuse of process are made out.
Contention 4. All four claimants were parties to the judicial review proceedings.
- The claimants contended, as a further basis for being entitled to bring separate proceedings, that the three children had not been parties to the judicial review proceedings in any event. On behalf of the defendant, it was accepted that they had not been parties to the first judicial review proceedings but it was contended that they were parties to the second by virtue of the words "+ 3" being added after the words "[BA]" in section 1 which is a box headed: "Claimant(s) names and addresses". This contention was supported by a textual analysis of the claim form which, it was submitted, showed that the claim was being brought by "claimants" rather than by"a claimant". However, it is clear from the claim form and the grounds of defence document that both are addressing the judicial claim of "a claimant" and that, as is often the case, in both documents an "s" or a misplaced apostrophe occurred on occasion as typographical slips so as to refer mistakenly to "claimants" or "claimants'" rather than "claimant" and "claimant's".
- There are four good reasons why the three children were not parties to the judicial review claims.
(1) The three children are not named on the claim form.
(2) The decisions being impugned in the judicial review proceedings were decisions that only concerned BA. She had not put in issue the children's removal directions and they were not named as being joint applicants in the various submissions addressed to the defendant by BA. The defendant's relevant decisions were not, therefore, decisions that directly affected the children or were ones about which the children could have sought judicial review.
(3) It was correct to refer to the three children in the claim form, but as interested parties. Administrative Court procedure requires "any person (other than the claimant and the defendant) who is directly affected by the claim" to be added as interested parties and not as defendants (CPR 54.(2)(f)). An interested party is not a party to the claim but is, nonetheless, entitled to make written submissions and to be represented at an oral hearing. Thus, the children, who would in fact be removed if their mother was removed, were properly referred to in the claim form and, that reference was, or certainly should be considered to be, to the three children as "interested parties" and not as "parties". They are not therefore bound by any decision in the judicial review proceedings.
(4) BA's judicial review solicitor had no instructions to represent the children.
(5) No litigation friend had been appointed for any of the children, as required by CPR 21.3(4). Had an application been made either prospectively or retrospectively for BA to be appointed as their litigation friend, the application would have been refused since BA's solicitor had no instructions to act for her in that capacity.
Thus, it is a further ground for showing that the private law action should be permitted because the three child claimants have not been parties to any previous judicial review proceedings.
Contention 5. No change of circumstances to warrant separate wrongful detention claims.
- This contention is not made out. There have been substantial changes in circumstances, namely the considerable volume of evidence, being both that which is now available and that which still remains to be obtained, that relates to the claimants' medical condition and their treatment and to the various detention decisions that were made. There was no reason for this material to have been disclosed previously and it would be a denial of justice to shut out the claimants without their first obtaining and considering the considerable volume of the defendant's internal documentation that is relevant to and disclosable in their damages claims. On the basis of the material currently available, those claims are clearly sustainable and are not susceptible to being dismissed by way of a summary judgment.
- Deputy Master's decision
- The Deputy Master's decision can be seen to have been based on an erroneous view of the facts and to have been made without reference to ID, on a misunderstanding of Administrative Court procedure and without applying the appropriate test for abuse adumbrated by Lord Bingham LCJ[33]. Thus, significant matters which were taken account of should not have been taken account of and significant matters were not considered which should have been considered.
Conclusion – Appeal from Deputy Master.
- In those circumstances, the Deputy Master's order should be set aside in its entirety. In re-exercising the discretion as to whether to strike out the claimants' claims, I conclude, for all the reasons set out in this judgment, that the claimants' Queen's Bench action should be permitted to proceed.
- In my view, I should now make the following case management directions:
(1) The claimants and the defendant should serve a list of documents within 28 days of this order or of an order dismissing an application for permission to appeal or, if permission is granted, dismissing the appeal;
(2) The claimants should serve an amended claim form fully particularising their claims and a list of the witnesses of fact and expert witnesses they intend to serve a witness statement from and a list of witnesses whose views are set out in disclosed documents whose views and evidence is disputed and who they wish to call for cross-examination within 49 days of this order;
(3) The defendant should serve an amended defence and a list of witnesses they intend to serve a witness statement from or who they consent to be called for cross-examination within 70 days of this order;
(4) The proceedings should be stayed for mediation for a period of 28 days following the service of the defendant's amended defence;
(5) If the action is not compromised, the claimants should apply for directions from the Master for witness statements, expert evidence, venue, other outstanding matters and setting down.
HH Judge Anthony Thornton QC
