England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE LONGMORE)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 22 May 2001

1. LORD PHILLIPS, MR: This appeal is brought pursuant to the permission of Simon Brown LJ, granted on 2 May 2001, from the decision of Longmore J on 8 December 2000 on a preliminary issue whereby he dismissed the claimants' claim for damages under the Human Rights Act 1998 ("the 1998 Act"). Simon Brown LJ granted permission, not because he rated the prospects of success highly, but because he considered that the appeal raises a point of law of general application which should be determined by this court sooner rather than later.
2. The appellants are man and wife and they come from Algeria. They arrived in the United Kingdom on 11 January 2000 seeking asylum. They sought accommodation and support from Haringey Borough Council, which was under a statutory duty to provide this. The assistance they received was inappropriate and inadequate, particularly having regard to the needs of the wife who was pregnant and then sadly miscarried.
3. On 8 May 2000 the appellants commenced proceedings for judicial review. Permission was granted by Scott Baker J on 9 June. The relief which they sought was in relation to the following decision:

"The decision of Haringey Council dated 10th February 2000 assessing that the Applicants did not have any special needs and dispersing the Applicants to Newcastle upon Tyne."

4. The relief sought was:

"1. An order of certiorari to quash the decision of Haringey Council dated 10th February 2000 that the Applicants did not have special needs and that the Applicants should be dispersed to the Roselodge Hostel in Newcastle upon Tyne.

2. An order that Haringey Council properly assess the needs of the Applicants.

3. Damages.

4. Any other necessary or consequential orders or directions."

5. The facts alleged in the grounds advanced for this relief paint a distressing picture. Those grounds end as follows:

"It is submitted that in failing to properly assess the special needs of the Applicants Haringey Council acted unreasonably in the Wednesbury sense. It is respectfully submitted that the Applicants should be granted an order of certiorari quashing the decision of Haringey Council dated 10th February 2000 dispersing the Applicants to Newcastle upon Tyne, an order requiring Haringey Council to assess the Applicants' needs properly, damages and any other order or relief that the Court thinks fit."

6. Haringey Council has accepted in relation to one of the allegations made that it acted unreasonably in the Wednesbury sense.
7. Before the application came on for hearing, further grounds in support were filed. These ended as follows:

"The claim to damages will be pursued under s.8 of the Human Rights Act 1998 as well as in negligence and in misfeasance in public office. The Court will be invited to give appropriate directions for the pursuit of the damages claim."

8. The issue raised by this appeal is whether it is open to the appellants in these proceedings to claim damages under the Human Rights Act 1998. The 1998 Act came into force on 2 October 2000. The appellants contend that the provisions of the Act entitle them to claim damages for conduct that breached the European Convention on Human Rights, notwithstanding that the relevant acts occurred before the 1998 Act came into force. The appellants contend that the council's conduct breached Articles 2, 3, 8 and 9 of the Convention.
9. The sections of the 1998 Act relevant to this appeal are as follows. Section 8(1):

"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers, as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings."

10. That section then sets out the principles governing an award of damages under the Act.
11. Section 7:

"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act."

12. Section 6 provides:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

13. Finally, section 22(4) provides:

"Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."

14. The section came into force on 2 October 2000.
15. The submissions of Mr Manjit Gill QC, for the appellants, can be summarised as follows:

(1) The Crown is a public authority within the meaning of that phrase in section 22(4).

(2) Judicial proceedings are brought by the Crown, therefore, the present proceedings were "brought by or at the instigation of a public authority" within the meaning of that phrase in section 22(4).

(3) It follows that in these proceedings the appellants are entitled to rely on Convention rights in relation to acts which took place before 2 October 2000.

(4) In claiming damages for breach of the Convention, the claimants are relying on Convention rights.

16. The appeal has been resisted by Mr James Presland, on behalf of the London Borough of Haringey and Mr Martin Chamberlain, on behalf of the Secretary of State for the Home Department. The Secretary of State is interested because of a transfer of responsibility for the treatment for those seeking asylum from local authorities to himself under Part 6 of the Immigration and Asylum Act 1999.
17. The respondents accept Mr Gill's first proposition, but challenge the next two. The primary issue that we have to resolve is whether these proceedings are brought by the appellants so that section 7(1)(a) applies to them or, alternatively, whether they are brought by, or at the instigation of, the Crown so that section 7(1)(b) applies to them.
18. As to this issue, Longmore J held as follows:

"As is well-known the origin of proceedings for judicial review (now governed by the equivalent in the new procedural rules of the old Ord 53) is that when someone wished to complain of the decision of a public authority, and there was no means of appealing the decision of that public authority, the way in which the courts and, indeed, the Monarch ensured that such public authorities obeyed the rules of the land was that their decisions were brought up for review by the court of Queen's Bench, and the ancient writs of certiorari, prohibition, and mandamus were issued in the name of the Sovereign in order to ensure that public bodies making decisions applied the law.

That was the procedure by which decisions of public authorities were called into question....

Of course, they could not be called into question unless there was someone aggrieved by a decision who sought to initiate the review that the old court of Queen's or King's Bench, as might be the case, permitted.

There would have to be someone aggrieved and someone who set the law in motion. That traditionally has been called the applicant and such persons are still called the applicants. In the old days the title of the action having stated the Queen and the public authority would have gone on to say 'ex parte so and so', which would indicate that it was that party that was setting the law in motion. So here, it is now recorded on the face of the form that it is a 'without notice application' of Mr Abdelaziz and Mrs Kryva. It seems to me that I should look at the substance of the matter rather than merely at the form.

Looking at the nature of the proceedings they are proceedings brought by the applicants and they cannot be said, therefore to be proceedings brought by, or at the instigation of, a public authority. That means that however right the applicants may be that there was conduct on the part of the local authority which might have constituted a breach of the Human Rights' articles if it had been done after 2nd October there can, in my judgment, be no Human Rights claim for the matters which are here complained of."

19. Mr Gill submitted that the distinction drawn by Longmore J between substance and form was illegitimate. He argued that section 22(4) should be construed broadly so as to embrace proceedings brought by a public authority, whether in substance - "instigated by" - or in form. Anyway, he submitted, the involvement of the Crown in judicial review proceedings was no mere formality. It was a fundamental purpose of judicial review proceedings to ensure that the law was properly administered so that there was order and peace within the realm.
20. In support of that submission, he referred us to a passage from Wade and Forsyth's administrative Law (8th edition) at page 591:

"The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion. The Crown is the nominal plaintiff but is expressed to act on behalf of the applicant, so that an application by Smith to quash an order of (for instance) a rent tribunal would be entitled R v The - Rent Tribunal, ex parte Smith. The court will then decide whether the tribunal's order was within its powers. There are normal rights of appeal both for the applicant and the tribunal."

21. Mr Gill submitted that judicial review proceedings did not involve a contest between parties, and that applicants for such proceedings do not bring proceedings against a public authority when they apply for judicial review. He further argued that which we should adopt an interpretation of section 22(4), which gave effect to the Convention, in so far as is possible.
22. Section 22(4) expressly restricts the circumstances in which proceedings can be bought for acts incompatible with the Convention. Mr Gill shrank from arguing that this restriction was incompatible with Convention rights. Such a submission would have required us to grapple with the effect of the exclusion of Article 13 of the Convention from the Articles that give rise to Convention rights. Mr Gill argued that the policy of the Act favoured giving interpretation to section 22(4) in such a way as to give the greatest possible effect to the Convention.
23. The object of section 22(4) of the 1998 Act has recently been considered by this court in Wilson v First County Trust Limited [2001] EWCA CIV 633. Giving the reasons for the Court's decision, the Vice Chancellor made these observations at paragraph 21:

"Once the effect of section 22(4) of the 1998 is analysed, it is not difficult to see the purpose for which that section was enacted. Parliament took the view - no doubt as a matter of policy - that public authorities should not be exposed to proceedings in respect of acts (alleged to be incompatible with Convention rights) which had taken place before sections 6 and 7 had come into force. Nor should the decisions of courts and tribunals made before those sections had come into force be impugned on the ground that the court or tribunal was said to have acted in a way which was incompatible with Convention rights. But, where the public authority was itself the claimant in, or the instigator of, proceedings, there was no policy reason why another party to those proceedings should not rely on an allegation that the authority had acted in a way which section 6 made unlawful, whenever the alleged unlawful act had taken place. The first limb of section 22(4) is required because, without it, an act of a public authority which was incompatible with a Convention right but which had taken place before section 6 had come into force would not be unlawful; with the consequence that the unlawfulness of the act could not be relied upon as an answer to proceedings brought by the public authority. The second limb of section 22(4) is required because, without it, public authorities would be exposed to claims in respect of acts (said to be unlawful under section 6(1) which had taken place before section 7 had come into force."

24. I agree with those observations. The general scheme of section 7 and section 22(4), read together, is that acts prior to 2 October 2000 can be relied upon by way of defence but cannot be used offensively as a basis for advancing a claim. Having regard to that conclusion, it would be quite extraordinary if the 1998 Act conferred on claimants who proceeded by means of an application for judicial review, a substantive advantage not open to claimants proceeding by action, namely, the advantage of being able to found a claim on acts that took place before the 1998 Act came into force.
25. Mr Chamberlain submitted that this was not the position. He submitted that judicial review proceedings are not in any sense brought "at the instigation of" the Crown. They are instigated by the applicants, or claimants. Nor, he submitted, are they brought "by" the Crown either as a matter of substance or as a matter of procedure. The Crown has no power to influence, nor any other involvement with, the conduct of judicial review proceedings. He went on to submit that it is not even right to characterise, as did the court below, the Crown's involvement as a procedural matter. Even procedurally, the Crown has no involvement in judicial review proceedings.
26. It is submitted that the claim for judicial review does not require, and has not since the end of the 16th century required, the permission of the Crown, even in a purely formal sense.
27. Mr Gill suggested that the requirement to obtain permission before pursuing judicial review proceedings reflected the fact that the Crown was involved. I accept Mr Chamberlain's submission that it does not, that it is simply a matter of procedure designed to protect the court from claims which have no merit.
28. Mr Chamberlain submitted that the presence of the Crown in the heading of proceedings for judicial review is better described as formal rather than procedural; it is a remnant of the history of prerogative writs. He referred us to another passage from Wade and Forsyth at page 582 in support of that submission. Under the heading "Prerogative remedies":

"Their hallmark is that they are granted at the suit of the Crown, as the title of every case indicates. They are 'prerogative' because they were originally available only to the Crown and not to the subject....

By the end of the sixteenth century these remedies had become generally available to ordinary litigants (some had done so much earlier), and an applicant could begin proceedings in the Crown's name without seeking any permission or authority. The Crown lent its legal prerogatives to its subjects in order that they might collaborate to ensure good and lawful government."

29. I agree with Mr Chamberlain's submissions, save that I would suggest that the better description of the Crown's involvement in judicial review proceedings is a nominal rather than formal involvement. In reality, such proceedings represent a contest between the applicant, who both initiates and pursues the proceedings, and the authority against which the proceedings are brought. Judicial review proceedings are neither brought by, nor at the instigation of, the Crown.
30. When one looks at the provision of section 7(1) and 7(3), the matter is, in my view, put beyond doubt. Section 7(1) provides that a person may bring proceedings against the authority under the Act only if he is or would be a victim of the unlawful act. If Mr Gill is correct, that it is the Crown which brings the proceedings, it must follow that no claim for breach of the Convention can be advanced in judicial review proceedings unless the Crown is a victim. Mr Gill was not able to suggest convincingly that in any of its emanations the Crown could be deemed to be a victim. Certainly, the role that he suggested that the Crown played in these proceedings was not the role of a victim. It is, indeed, questionable whether the Crown in any guise can be a victim for the purposes of a claim for breach of the Convention (see the discussion in Clayton and Tomlinson on the Law of Human Rights, para 22.26).
31. When the provisions of section 7(3) are considered, they make it quite plain that, where a claim is brought in judicial review proceedings, it is the applicant for judicial review who is considered to be bringing the claim under section 7(1)(a). Thus, Longmore J was correct to dismiss the claim for damages under section 8 of the 1998 Act on the ground that it was a section 7(1)(a) claim which was precluded by section 22(4).
32. Mr Presland and Mr Chamberlain advanced an alternative answer to the argument advanced by Mr Gill. This was not advanced below, but merits reference. Section 31(4) of the Supreme Court Act 1981 provides:

"On an application for judicial review the High Court may award damages to the applicant if-

(a)he has joined with his application a claim for damages arising from any matter to which the application relates; and

(b)the court is satisfied that, if the claim had been in an action begun by the applicant at the time of making his application, he would have been awarded damages."

33. Thus, a claim for damages can only successfully be advanced in judicial review proceedings if such a claim would have been successful if brought in an action.
34. Had the appellants claimed damages under section 8 of the 1998 Act in an action, they would have been met by a defence under section 22(4) to which there would have been no answer. Even if Mr Gill had been correct that it was the Crown rather than the applicants who brought the judicial review proceedings, it would not have been open to the appellants to advance in those proceedings a claim for damages for breach of the Convention which they would not have been able to bring in an action.
35. Mr Gill grappled valiantly to find an answer to this point but, so far as I am concerned, he was not successful.
36. For the reasons that I have given, I would dismiss this appeal.
37. LORD JUSTICE PILL: I agree.
38. LADY JUSTICE ARDEN: I agree.
Order: Appeal dismissed with no order as to costs. Detailed assessment of funded client's costs.