England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
(MR JUSTICE DAVIS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 July 2010

Judgment & PJD

Lord Justice Pill:

1. This is an appeal from a decision of Davis J dated 22 May 2009, whereby he ordered that Mr Abdi, the respondent, be released from the administrative custody in which he had been held by the Secretary of State for the Home Department ("the Secretary of State") since 29 December 2006, a period of 30 months.
2. The judge dismissed the respondent's claim for damages for his detention during that period, which he claimed to have been unlawful. The Secretary of State appealed against the respondent's release and the respondent cross-appealed to claim damages for unlawful detention.
3. The appeal came before the court as presently constituted yesterday morning, with a time estimate of one-and-a-half days. In opening, Mr Tam QC for the Secretary of State stated that the court was invited to deal with a "nice little point of principle". It was a point of law which had been "floating around for some time". Mr Tam said that the cross-appeal was more fact-specific, but told the court, with the apparent assent of Mr Husain QC, who appears for the respondent, that if the appeal succeeded, the respondent's appeal would fall away.
4. The point of principle was stated. The Secretary of State claimed an inflexible rule, though subject to certain exceptions, that when a court is considering the lawfulness of detention under paragraph 2 of Schedule 3 to the Immigration Act 1991, and deciding whether the time limit had been reached, the court should ignore the time spent pursuing underlying appeals. By "underlying appeals" is meant appeals against the deportation order, or the notice of a decision to make a deportation order, the prerequisite of the power to detain coming into operation.
5. The court has heard detailed submissions from Mr Tam and from Mr Husain on that point. They have been wide-ranging and have considered domestic and Strasbourg jurisprudence. It has of necessity been wide-ranging because this is an issue which -- and we express only a provisional view -- does not appear to have been confronted specifically by this court when dealing with cases under the Schedule.
6. The factor of delay has undoubtedly been considered in cases. There is an issue as to whether there is a fixed principle as Mr Tam contends. Mr Justice Mitting in one case appeared to have found in favour of the Secretary of State on this point.
7. We do not propose to go into the merits of the case, but the starting point, as agreed by the parties, are the limits of the power defined by Woolf J in R v the Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704. These were summarised by Dyson LJ in the R(I) v Secretary of State for the Home Department [2003] INLR 196 at paragraph [46] and it is as well to recite this summary in this short judgment:

"i. The Secretary of State must intend to deport the person 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 the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv. The Secretary of State should act with the reasonable diligence and expedition to effect removal."

8. The notice of appeal served by the Secretary of State challenged paragraph 2 of the order of Davis J that the claimant must be released by 4.00pm on 22 May 2009. The grounds of appeal supporting that application stated:

"The Secretary of State's sole ground of appeal is that the judge erred in law in rejecting the Secretary of State's submission in assessing:

(a) whether detention has lasted for a period of time longer than that which is reasonably necessary for the purpose of deportation; and/or

(b) deportation is possible within a reasonable period of time. The time taken to resolve the detainee's statutory appeal against deportation should generally be left out of account. The learned judge should have decided the time taken to resolve such a statutory appeal should generally be left out of account and should as a result have decided that the respondent's continued detention was not unlawful."

9. The skeleton arguments on both sides accepted those terms of reference and, especially having regard to the indication given by Mr Tam at the beginning of the appeal, the court has concentrated, as have the submissions, on principle (ii) of the principles summarised by Dyson LJ. What emerged, however, on the second day of the hearing, and emerged at the initiation of the court, was that arguably paragraph 76 of Davis J's judgment, in addition to making a finding on principle (ii), also found that by reason of the application of principle (iii) the respondent was entitled to his release.
10. While we have been referred to cases, notably the case of R(I) v SSHD, in which the two principles have been considered in the same case, argument has been concentrated upon principle (ii) and the inflexible principle which the Secretary of State wishes to have applied when considering the extent of that principle. Indeed, in I itself, on which the Secretary of State strongly relies as supporting his proposition, the case turned not on that issue at all, but on the issue in principle (iii), which has been referred to as "the deportation issue".
11. I will not recite paragraph 76 in full, but it is plainly arguable, though it has not been argued on behalf of the respondent, that, quite apart from the point of principle on which the Secretary of State requires a ruling (and is the entire basis of the Secretary of State's appeal) there is a potential for dismissing the appeal on the basis, as in I, that the detention could not be justified under principle (iii). Mr Tam has indicated that he wishes to argue a number of points in relation to principle (iii). One is the rule 39 indication given by the European Court of Human Rights in other cases, and another is the question whether all a respondent has to do (or detained person has to do) is to point to a moment in time at which (iii) is not satisfied during the appeal process to entitle him to release.
12. The issue is not straightforward, and in our judgment has to be considered along with the point raised by the Secretary of State in his notice of appeal. In our judgment, unfortunately that point becomes an academic point in relation to the decision of this case, not only because of the need to consider the cross-appeal in the event of a finding adverse to the Secretary of State, but also because argument will be required on the inter-relationship of the two principles and the impact of the authorities in that context.
13. Mr Tam put various possibilities to the court before the short adjournment. The court is most conscious of the court time already invested in this appeal and the advantage, having regard to that, of at least some progress being made in resolving the issues which have arisen. It was suggested that, following short oral submissions this afternoon, further written submissions should be made on the principle (iii)s question and the court would hand down a judgment on the basis of those written submissions.
14. The points raised, including that initially raised by the Secretary of State, are important points and a considered decision of this court would be appropriate. The case is all about delay and the court, because of the scrutiny which it is argued may be given to the efficiency of the judicial process, was intending to give judgment orally on Friday afternoon -- that is, less than two days away -- notwithstanding that the court has other commitments in the meantime.
15. We are not able to accede to Mr Tam's submission, having regard to the importance of the points involved and to the open-endedness of what he suggests. It would not be satisfactory, in our view, to decide the case on the basis of a combination of oral submissions which we heard on point (ii) and written submissions, which I have no doubt would be devised as helpfully as possible by the parties, on principle (iii). There would in any event remain the question of cross-appeal, which, depending on the outcome of the appeal, would arise, and that is estimated by the parties as half a day. That in itself would be too limited a suggestion. The estimate of one-and-a-half days was in our judgment, and having regard to the points which have arisen, a considerable underestimate. It is important the case re-listing is arranged this term. It was listed soon after Easter but unfortunately, due to climatic difficulties, which were the fault of no-one involved in the case, that hearing had to be vacated.
16. The present constitution is unable to reconstitute next term. We have considered our commitments and that would be impossible. What will therefore be necessary if we adjourn the case is that the case has to be started afresh before a different constitution, unattractive though that is, particularly in view of the importance of court time but also costs for the parties. It is unfortunate that this course has to be taken, but in our judgment it is the only sensible course in these circumstances. As against the complexity and, as is submitted by the parties, the inconsistency between existing authorities, it would not be appropriate for the court to give a judgment on a point which of itself is academic and which can only properly be considered in the context of the facts of the case and the full issues which arise.
17. It is tempting to refer, at any rate in summary form, to the alleged inconsistencies to which we have referred, but we will refrain from that. We have been referred to a number of cases, both of this court and at first instance and, as we said at the beginning of this judgment, it does appear that this point has not been confronted expressly in some of the cases, which have gone off on other points. A consideration of the effect of those authorities is a somewhat complex question. That in itself would not have deterred the court but in the context we have described it would not be satisfactory for this court, and certainly not within the timescale involved, to give judgments appropriate to the situation.
18. The case will be adjourned on that basis. I have spoken to the listing officer, who will be available during the two days now before the end of term to consider representations from counsel and counsel's clerks as to when the case should be re-listed. It is important that it should be re-listed as soon as possible and certainly next term. We have come to the conclusion that three days should be set aside for the hearing of this appeal and we direct accordingly.

Order: Appeal adjourned

Lord Justice Pill: Does anything else arise?

Mr Tam: The only outstanding matter relates to the question of costs, which now arises quite acutely because the whole of the time spent preparing for this hearing, and the hearing, has in effect been wasted and will inevitably have to be got up again from scratch next time. My learned friend has, as I said, very graciously accepted that when the notice of appeal and the appellant's notice was served the grounds of appeal were there. I do not want to go into the internal difficulties there might have been within the respondent's team, but the fact of the matter is it was there and from those grounds of appeal it is apparent that this point should have been raised in one or other, or possibly both, of the forms I have mentioned so that --

Lord Justice Pill: That is in the respondent's notice or skeleton.

Mr Tam: Yes.

Lord Justice Pill: I understood you to say that Mr Husain was conceding that the rule 39 point should have been the subject of a respondent's notice --

Mr Tam: Yes, it is only --

Lord Justice Pill: He is shaking his head.

Mr Tam: All right --

Lord Justice Pill: We did not get into the merits of this.

Mr Tam: No, there is a reason why I outlined the two arguments which could be put against me in relation to this. One is that Davis J has already decided this and therefore your point of principle is immaterial to his decision. Whatever the result of the legal argument, he decided what he decided on the facts and you're going to lose anyway. That is immateriality, which, speaking for myself, if I had a case where that was a point it would be paragraph 1 in my respondent's skeleton argument to say this is an immaterial point, the court need not look at it.

The other way of putting it against me is this, is this is what Davis J would have decided even if he had accepted your legal argument and that is a respondent's notice point because it is a different reason for the same conclusion and the respondent is saying that he should still have ordered release of the individual, but for a different set of reasons. Rule 39 demands this even if the Secretary of State is right on the point of law and that, we say, should be in a respondent's notice. If there is argument about that, it is clearly something that should also have been in a skeleton argument and either way we should have had proper notice of that.

We are not here ever deliberately to argue moot points. And I explained before the short adjournment the way we see it and on what we say is a proper reading of paragraph 76 and the paragraphs either side of it, this is what makes all the difference to Davis J's decision and we should have been given that opportunity to deal with it.

Accordingly, we respectfully say that the responsibility -- I will use the word "responsibility" if I may -- for what has happened does fall entirely on the respondent's side. We have done what we needed to do. The argument was fully set out and presented. If these points were to be taken against us, we should have been told about them. So we respectfully say that the costs necessitated by this adjournment should be paid by the respondent and we apply for that.

Lord Justice Pill: Mr Husain?

Mr Husain: My Lord, our submission is costs should be in the case for this reason. Mr Tam's argument is that what Davies J decided was that because of the time spent on appeal, historically, that fell to be taken into account and therefore it could not be said that Hardial Singh (iii) would be complied with. That is the limits of the case that we put. We, with respect, sought to engage in our skeleton argument in the passage I have shown you -- I think it was putting it rather generously to say that we had adverted to the rule 39 point, but we did raise the 39 point in paragraph 78 and 79 of our skeleton argument and we respectfully submit that it was for Mr Tam to make his case on his appeal.

Lord Justice Pill: I would have expected you yesterday morning, if not before, to have said "Oh, no. This is not the fundamental point of principle in this case, there are other points in the case" unless you were here to argue only the fundamental point of principle.

Mr Husain: The fundamental point of principle remains the fundamental point of principle. The issue of the rule 39 problem is not a fundamental point of principle. Mr Tam and I are both agreed on that. Rule 39 arises centrally on our cross-appeal.

Lord Justice Pill: Yes, but the point simply is that you did not take in your skeleton by way of skeleton or by respondent's notice the principle (iii) Dyson LJ point.

Mr Husain: What we said in terms at paragraph 78, which is not clear from the Secretary of State's skeleton argument, the Secretary of State seeks to suggest that, when considering the likely timescale for removal, Mr Justice Davis was wrong to consider time that the respondent was spending on domestic appeals but was entitled to consider the rule 39 bar, then the judgment can't be included. We have put it there.

Lord Justice Pill: But as now argued, it is not simply a rule 39 bar, as to which there are arguments both ways.

Mr Husain: No, it is. My Lord, it is only rule 39 because it has -- Mr Tam is right, your Lordship mentioned HH (Somalia) before the short adjournment and you said we had not gone into that. My Lord, if he is right we can't go into that, we can't go into how long the appeal will take to resolve here because if he is right that just falls out of the picture. Hardial Singh principle (iii) in this case is all about and only about rule 39 if he is right, and we have said, with respect to rule 39 at paragraph 78 of our argument, that (a) it is not clear what he is saying, but (b) if he is saying that Davis J was wrong to consider the time spent on domestic appeals, but was entitled to consider the rule 39 bar, then the judgment can't be included, so it is exactly what Mr Tam says he would have expected in the skeleton. Alright, t is not in the first paragraph, but it is there, with great respect.

Lord Justice Pill: Yes.

Mr Husain: It is there. And we would submit that in those circumstances it would be absolutely wrong, with great respect, to penalise us. It is very regrettable that as a matter of time…both parties have underestimated the time and I am sorry, usually counsel make the other error, they allow -- I am sorry, no that's the classic error of asking for too little time, but both parties are guilty of that and we apologise for that state of affairs, we apologise for how the issue has arisen, but the point is there in paragraph 78 and 79 of our skeleton. It did not need to be in the respondent's notice. My Lord, Rimer LJ, made the point because that deals with a separate problem of an additional ground on which Davis J should have allowed the appeal. We say he did allow it on this basis. We would say really that there is no cause whatsoever, with great respect, for the court to say anything other than costs in the case.

Lord Justice Pill: Thank you. Anything in reply, Mr Tam?

Mr Tam: My Lord, your Lordship will have formed a view about paragraph 78. Materiality, well it is far from obvious, even if you could divine it from this, and, with great respect, the whole point of the skeleton argument procedure is so that if there is a distinct point to be made against the appellant -- it is not for me to pre-empt that -- but if there is a distinct point to be made against me by the respondent, it should be there and identified and here we find it in the middle of the section on point 10 out of a series of 11 points and even now in reading that I find it difficult to see how that can be interpreted as a materiality point and really it is something that was not made clear. And the fact that it was not really intended to be that is underlined, we respectfully say, by the surprise by which my learned friends were personally taken today when seeing the grounds of appeal for the first time. And so this is clearly something which is within their responsibility.

Lord Justice Pill: Anything further? Thank you. We will retire.

(The Court adjourned for a short time)

Lord Justice Pill: Mr Tam, Mr Husain, we reserve the question of costs to the constitution deciding the case. They will be in a good position to see the overall picture and that may throw further light on the proceedings before this constitution. I would direct that our judgment in relation to the adjournment and the submissions which counsel have made on the submissions of costs, not the earlier submissions but the post-judgment submissions on costs be transcribed and be available to the court hearing the case. And for present counsel I do not think I need labour this, but consideration should be given to any fresh documents and skeleton arguments to assist the task of the court hearing this important and interesting case.

Mr Tam: My Lord, yes. I am grateful.

Lord Justice Pill: Is there anything else arising?

Mr Husain: I am grateful. Thank you very much.