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
(MR JUSTICE KEITH)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 10 April 2002

1. LORD JUSTICE MUMMERY:I will ask Lady Justice Hale to give first judgment.
2. LADY JUSTICE HALE: This is an application by some of the claimants in a group action against the Ministry of Defence ("the PTSD group action"). These particular claimants wish to intervene in an appeal brought by the Ministry of Defence in another action on the ground that the issues raised in this appeal will directly affect the success of their claims.
3. Both actions turn, to some extent, on the effect of section 10 of the Crown Proceedings Act 1947 and whether it is compatible with the claimants' rights under the European Convention on Human Rights. Both parties to the current appeal are opposed to the proposed intervention. During the course of this hearing matters have moved on. What is now proposed is rather different. The purpose of this short judgment is simply to set the scene, explain how matters have developed so far and to distinguish different types of intervention without foreclosing on the present options.
4. In this action the single claimant was employed by the Royal Navy as an electrical engineer working on various ships between 1955 and 1968. He claims that he developed an asbestos related illness as a result of his exposure to asbestos during that work. It was not until some time in 1999 that he was aware that the illness might be attributable to what he alleges were acts or omissions by the Ministry of Defence.
5. The Ministry proposes to defend this on the merits, but it also proposes to rely on the immunity granted by section 10 of the 1947 Act. That section was repealed by the Crown Proceedings (Armed Forces) Act 1947, except in relation to anything suffered in consequence of an act or omission before the date of its commencement. Grossly over simplified, and therefore not to be taken as any indication as to what my view is as to the meaning of section 10, it exempts members of the Armed Forces and the Crown from either liability for, or liability to be sued in respect of deaths or personal injuries suffered by other members of the Armed Forces, caused in certain circumstances associated with their duties as such. The crucial point, however, is that that exemption only applies if the Ministry of Defence certifies that the death or personal injury will be treated as attributable to service for the purposes of an award of compensation under the schemes governing the death, or disability, of members of the Armed Forces. As Keith J explained in this case, the effect was to substitute, where the Secretary of State has so certified, a no-fault scheme of compensation for the right to sue for damages in tort. He also pointed out that the benefits under that scheme are modest compared with modern levels of damages.
6. The argument before him was that this was incompatible with the claimant's rights under the European Convention, in particular Article 6. Keith J held that it was incompatible.
7. He held that Article 6 was engaged: this was the determination of the claimant's civil rights and liabilities. He held that section 10 was a procedural rather than a substantive bar to the right to sue in tort for breach of the common law right not to be exposed to asbestos either negligently or in breach of statutory duty. He held that the exception made by the European Court of Human Rights, for claims relating to the conditions of service of certain state employees, did not apply to this sort of claim. He held that the restriction on access to the courts was not proportionate (that is no more than necessary to accomplish a legitimate aim to which it was rationally connected). He relied for this purpose, particularly, on the repeal of section 10 by the 1987 Act. He did not think that the reasons given against applying that Act retrospectively derogated from that conclusion.
8. The judge also held that the claimant could invoke the Human Rights Act even though the cause of action arose before the Human Rights Act came into force. He relied, in particular, on the reasoning in this court in the case of Wilson v First County Trust Limited (No 2) [2001] EWCA Civ 633. Hence he made a declaration that section 10 was incompatible with the claimant's rights under Article 6. That does not affect the outcome of the case, it merely places obligations on Her Majesty's government to put it right.
9. On the way to reaching that conclusion, the judge rejected the alternative route to compatibility, that of using the strong interpretative obligation in section 3(1) of the Human Rights Act so as to read and give effect to section 10 in a compatible way. That, he held, was not possible. Therefore, he did not have to consider retrospectivety in that context.
10. He recognised the importance and difficulty of the point and the fact that it would affect many more people than the claimant in this case. He gave permission to appeal.
11. On the appeal the Ministry of Defence attacks all Keith J's conclusions except that on section 3. The respondent initially sought merely to uphold the declaration of incompatibility. In his skeleton argument he did not seek to reopen the section 3 point. However, as Mr Weir, on behalf of the respondent/claimant, points out, it is difficult to get to a declaration of incompatibility without first considering the potential for making the provision in question compatible. As a result of the arguments developed by Mr Gearty in the group action, the respondent/claimant does now wish to develop at least some of those points, for which he would have to put in a fresh or amended Respondent's Notice, in this appeal. He is, however, still anxious to do so within the original listing and with only a modest extension to the time estimate.
12. For present purposes, the group action concerns 112 claimants, although there is a register of many more potential such claimants. They form part of a larger group of claimants who are seeking damages from the Ministry of Defence for negligence in causing or contributing to psychiatric disorders arising from their participation in combat over a long period of time, principally in the Falklands, the Gulf, Bosnia and Northern Ireland. This group's claims involve events before 1987. The trial is currently proceeding before Robert Owen J in the High Court. It has been split into two parts. First, there is a generic section dealing with certain issues relating to a range of alleged breaches of duty, and there will also be issues on causation and, should it arise, section 10. That part is now expected to end in July. It will be followed by a selection of around 15 lead cases which will be examined in more detail to pick up more specific aspects of the evidence. This is due to start in October. It was originally anticipated that there would be one all-embracing judgment at the end of both parts of the trial.
13. The Ministry of Defence is raising the defence under section 10 of the Crown Proceedings Act, but it is not being treated as a knock-out blow or dealt with as a preliminary issue. It is not clear when it will be reached or indeed whether it will be reached. One could envisage certain decisions on the main issues currently being tried which would obviate the need for that.
14. We have had the benefit of seeing the Ministry of Defence's skeleton in the group action on the question of section 10. Some of the arguments are about whether the precise wording covers these claims at all but, in relation to the Human Rights Act argument, the Ministry argues that section 3 does not help. As Keith J held in this case, section 10 cannot be interpreted so to comply; doing so would involve rewriting rather than interpretation. As to incompatibility, the skeleton points out that Keith J has decided the point in this case, that it is under appeal and that the appeal is likely to be heard before the matter is likely to be reached in the group action in any event; (in fact the appeal is listed for the week after next) so it was suggested that arguments in the Group Action should await the outcome of the current appeal.
15. The applicants argue that in their action the Ministry of Defence have made the linkage between the points explicit. Put baldly, they do not want the outcome of those legal points for their many, many claims to depend upon a decision on the point raised in a case brought by a single claimant. They are particularly concerned that this claimant originally appeared content with his declaration of incompatibility. Therefore the argument about section 3 and other arguments relating to retrospectivety might go by the board. Now that they have convinced the respondent/claimant in this case that there may be something in the section 3 point, the essence of the application seems to be that this matters a great deal to a great many claimants and the arguments ought to be fully deployed.
16. Mr Gearty also argues out that, although their intervention might prolong the current appeal, it would be more efficient in the long run. It would save a great deal of court time and public money in arguing matters in the group action with a view to seeking to distinguish, on either side, whichever result this court eventually arrives at on the current appeal.
17. The parties to the current appeal both originally opposed the intervention on the basis that it would result in increased time, cost and difficulties in meeting the time estimate. The Ministry of Defence pointed out that there were two possibilities. The first was that the point of law decided on the appeal would be the same as that arising in the group action, in which case there was no need for the applicants to intervene. The respondent/claimant is represented by highly experienced counsel, Mr Richard Gordon QC, who is very familiar with the arguments under the Human Rights Act, and the Ministry of Defence is represented by Mr David Pannick QC. Alternatively, the points of law decided on the appeal would be different from those in the group action, in which case they will not be determinative of the group action. The argument, therefore, was that now was not the right time to seek to intervene, although it might be appropriate to do so should the matter go further. Interventions in the Court of Appeal are exceptional and they must be even more exceptional where they are against the wishes of the parties to the case.
18. There may also be a relevant distinction to be drawn between the three different types of intervention. The first is in a case which raises wider policy issues on which the court needs the full range of points of view if it is to form a proper appreciation of those issues. Examples of that are the case of Callery v Gray (No 2) [2001] 1 WLR 2142 and, more recently, Green v Police Complaints Authority. The second is in a case in which a third party has a direct interest in the outcome, as with the bank intervening in Astro Exito Navegacion SA v Southland Enterprise Company Ltd & Anor (No 2) [1982] 1 QB 1248.
19. In the third category is a case such as this in which a third party undoubtedly has an indirect interest in the outcome of a decision on a point of law because that decision may be determinative of their own case. The difficulty with the third type of intervention is that parties to litigation are frequently put in that position. Parties to other cases may be bound by decisions of this court, or the House of Lords or, indeed, of the High Court if they are in County Courts, on points of law which may very well not have been as comprehensively or as attractively argued as they might have been. (In this case, given the identity of leading counsel, that seems unlikely). Yet, as a general proposition people are not allowed to intervene in other people's litigation for that reason alone and numbers may not be a crucial difference.
20. That is the scene against which this application fell to be decided. However, during the course of this hearing an intermediate possibility was aired. This was that, while it would not be appropriate, for the reasons indicated, to permit intervention now, the application could be adjourned. This would allow the applicant to attend and watch developments as the appeal proceeded.
21. Mr Gearty has made the offer of affording such assistance as seems appropriate to the respondent/claimant in this appeal and then seeking to renew this application if it appeared, as a result of the development of the appeal, that there was something that the claimants in the group action had to offer, or that there would be such prejudice to their case that it would be unjust not to allow them to intervene.
22. With that revised proposal, the Ministry of Defence and the respondent/claimant in the current appeal are content. It would not involve anything other than waiting and seeing. It keeps everybody's options open, which is why I have expressed no view on what circumstances might develop which would make the application appropriate. The one thing that is plain is that the parties to the current appeal are very concerned that it should meet its listing and, although the time estimate should be extended from two to three days, it should nevertheless go ahead as currently listed.
23. For those reasons, I would accede to the suggestion that the matter be adjourned.
24. LORD JUSTICE MUMMERY: I agree with the judgment given by Lady Justice Hale.
Order: The application to intervene is adjourned. The costs of the application to intervene are reserved. The costs of the parties to the appeal which have been incurred today are to be reserved to the hearing of the appeal. The respondents are given leave to amend their notice and to serve an addendum to their skeleton argument which is to be done by 10 am on 16 April. The time estimate for the hearing of the appeal is revised upwards from two to three days.