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Nahar, R (on the Application of v the Social Security Commissioners [2001] EWHC Admin 1049 (21st December, 2001)

Neutral Citation Number: [2001] EWHC Admin 1049
CO/2000/2001

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Royal Courts of Justice
Strand
London
WC2A 2LL
21st December 2001

B e f o r e :

THE HON MR JUSTICE MUNBY:
____________________

R (SHAMSUN NAHAR)
v
THE SOCIAL SECURITY COMMISSIONERS
 ____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Roger André (instructed by Messrs Farringdons) appeared on behalf of the claimant Shamsun Nahar
Mr Tim Ward (instructed by the Office of the Solicitor, Department of Work and Pensions) appeared on behalf of the Secretary of State for Work and Pensions (formerly Social Security) and the Social Security Commissioners
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
 ____________________

Crown Copyright ©

  1. December 2001

    2. MR JUSTICE MUNBY:

  2. This application for judicial review brought with permission granted by Maurice Kay J on 3 July 2001 raises a point of law which is of very considerable importance to government and on which there appears to be surprisingly little authority. It engages some fundamental constitutional questions: What is the Crown? What is the Government? In what capacity does a Minister of the Crown act? What is the relationship of a Minister of the Crown both to the Crown and to another Minister of the Crown?

  3. In relation to all these matters I have been greatly assisted by Mr Roger André who appeared before me on behalf of the claimant, Shamsun Nahar, and Mr Tim Ward who appeared on behalf of the Secretary of State for Work and Pensions (formerly Social Security) and the Social Security Commissioners.

    4. The facts

  4. The facts so far as I need to examine them at all are uncontroversial and shortly stated.

  5. The claimant was born in what is now Bangladesh on 15 December 1930 and is thus now just 71 years old. She asserts, and has at all material times asserted, that on 9 March 1952 in Bangladesh she married one Abdul Kadir, the marriage being in accordance with Muslim tradition and practice. It is that assertion which has given rise to all the litigation which I must shortly describe. There is no marriage certificate as such but the claimant relies upon a document which purports to be a marriage deed written in Bengali and dated 25 Falgun 1359 BC, corresponding to 9 March 1952 AD, and which I shall refer to as the marriage deed.

  6. Mr Kadir came to this country in 1957. On 8 August 1961, describing himself as a bachelor, he married in this country a woman who I shall refer to as BB. On 26 July 1962 Mr Kadir applied for citizenship: in his application form he described the claimant as his wife. On the faith of that application he was registered as a citizen on 29 August 1962. On 31 March 1965 Mr Kadir had a son by BB. On 27 June 1967 he had another son again by BB. On 10 December 1967 he had a son by the claimant. This son, who I shall refer to as M, was born in Bangladesh. From 1968 to 1985 all three children lived with the claimant in Bangladesh. In 1976, so it is said, Mr Kadir divorced BB. He died in Bangladesh on 6 May 1985.

    7. The litigation

  7. On 11 January 1993 solicitors acting on behalf of the claimant wrote to the Department of Social Security as it then was asserting her claim to be entitled to a pension as Mr Kadir’s widow. Very shortly after that, on 2 February 1993 the claimant and M applied for entitlement to enter this country as respectively the wife and son of Mr Kadir. They were refused entry by the Entry Clearance Officer at Dhaka.

  8. On 4 August 1995 the claimant’s solicitors made a formal claim on her behalf to the Benefits Directorate for a widow’s pension. On 13 November 1995 the department asked the claimant to supply certain information. She was interviewed at the British High Commission in Bangladesh on 17 January 1996 by the pensions liaison officer. Her claim was refused by an Adjudication Officer on 8 November 1996, though the decision was not in fact issued until 7 March 1997. An appeal to the Social Security Appeal Tribunal was made by letter dated 19 March 1997. On 22 October 1997 the Tribunal adjourned the hearing after the claimant’s representative produced the marriage deed.

  9. In the meantime the appeal by the claimant and M against the decision of the Entry Clearance Officer had been allowed by an Adjudicator, Mrs R N Mannion, on 22 July 1997. This followed a hearing on 25 June 1997 at which the Entry Clearance Officer was represented by Mr P Deller, a Home Office presenting officer. The marriage deed was before the Adjudicator. In the course of her written determination and reasons the Adjudicator said this:

    10. “[H]aving seen the original marriage deed relating to the marriage of the [claimant] and the late Abdul Kadir, [Mr Deller] accepted the document as genuine.”

  10. On 13 November 1997 the Principal Adjudication Office of the Department of Social Security submitted the marriage deed for examination by Mr Graeme Marrs, a document examination officer in the Pensions & Overseas Benefits Directorate of the Department of Social Security. Mr Marrs produced a report the same day in which he expressed the opinion, giving reasons for his conclusion, that it was “highly unlikely” the marriage deed was issued in 1952.

  11. On 27 February 1998 the Social Security Appeal Tribunal refused the claimant’s appeal, having “found on the balance of probabilities that it had not been established that a valid marriage had been contracted between the [claimant] and Abdul Kadir”. The Tribunal’s full reasons were issued on 1 June 1998. Referring to the expert’s opinion the Tribunal described the marriage deed as “suspect”. The Tribunal mentioned that the claimant’s solicitor had “referred to the decision of the adjudicator of 22 July 1997” and went on to record the presenting officer’s riposte that that decision had been “based on the supposed validity of the marriage certificate”. The Tribunal concluded on the balance of probabilities that the marriage deed was a forgery.

  12. In the meantime, the Entry Clearance Officer had made an application to the Immigration Appeal Tribunal seeking leave to appeal against the Adjudicator’s determination. On 30 March 1998 the Tribunal allowed the appeal and remitted the matter back for a new hearing. That hearing took place on 7 December 1998 before another Adjudicator, Mr M A Clements. The Entry Clearance Officer was again represented by a Home Office presenting officer, on this occasion Mr Saunders. The claimant and M were represented by counsel, Mr Syed. The Adjudicator, like Mrs Mannion before him, was shown the marriage deed. He seems not to have been told about Mr Marrs’s opinion, though Mr Saunders in the course of his submissions described the marriage deed as “unreliable”. Mr Syed asserted, apparently without contradiction, that the marriage deed “has never been questioned as a forgery”. On 1 February 1999 the Adjudicator gave his written determination and reasons: like Mrs Mannion before him, he again allowed the appeals by the claimant and M and upheld the claimant’s claim to have been the wife of Mr Kadir.

  13. The Entry Clearance Officer again applied to the Immigration Appeal Tribunal for leave to appeal. On 6 May 1999 the Tribunal (Mr R G Care) dismissed the application and refused the Entry Clearance Officer leave to appeal. At that point the Entry Clearance Officer and the Home Office admitted defeat. The claimant’s entitlement to enter the United Kingdom was certified by the Entry Clearance Officer. The claimant arrived in the United Kingdom, where she is now settled, on 25 October 1999.

  14. In the meantime, on 3 September 1998 the claimant had applied to the Chairman of the Social Security Appeal Tribunal for leave to appeal. The grounds of appeal made no reference to the Adjudicator’s decision on 22 July 1997. The application was refused on 15 March 1999. On 28 April 1999 the claimant applied to a Social Security Commissioner for leave to appeal against the decision of the Tribunal. Amongst the grounds of appeal complaint was made of the fact that, so it was said, the Tribunal had erred in law in ignoring or not giving adequate consideration to the determinations of the Adjudicators on 22 July 1997 and 1 February 1999.

  15. The claimant’s solicitors asked the Commissioner to stay the proceedings until the Immigration Appeal Tribunal had reached a decision - which it did, as I have said, on 6 May 1999. However, it appears from a letter from the Court Service dated 31 May 2000 that the file was then lost and had to be re-constructed. Be that as it may, in the event the application for leave to appeal came before a Social Security Commissioner, Mr Commissioner Jacobs, for oral hearing on 27 February 2001. On 1 March 2001 he refused the claimant leave to appeal against the decision of the Social Security Appeal Tribunal on 27 February 1998.

  16. The Commissioner considered the decisions of the two Adjudicators. Of Mrs Mannion’s decision he commented:

    17. “It was obviously influenced by the way the case was argued by the presenting officer for the Entry Clearance Officer”.

    He observed, correctly, that the hearing before Mr Clements had taken place after the hearing before the Social Security Appeal Tribunal, “So it cannot be faulted for not considering it.” In answer to the claimant’s argument that there had been a denial of natural justice he said:

    “[The claimant’s solicitor] argued that the tribunal failed to accept or consider the decision of the immigration adjudicator. The first adjudication was in evidence. It was only persuasive, not conclusive. Also, it was so expressly dependent on the way the case was presented on behalf of the Entry Clearance Officer that the tribunal obviously had to make its own assessment of the evidence.”

    The judicial review proceedings

  17. On 18 May 2001 the claimant applied for judicial review of Mr Commissioner Jacobs’ decision on 1 March 2001. In her statement of grounds the claimant relied upon a number of matters, including complaints that the Commissioner’s decision was irrational, that the Commissioner had misdirected himself in law in a number of different respects, and that he had failed, so it was said, to take account of relevant considerations.

  18. On 3 July 2001, as I have said, Maurice Kay J gave the claimant permission to apply, but limited to three grounds only. Those three grounds, described by the claimant in her statement of grounds as abuse of process, legitimate expectation and unfairness, all go to the same essential contention, which is that the Secretary of State for Work and Pensions, as he now is, and the Social Security Appeal Tribunal were, or should be held, bound by the earlier findings of the two Adjudicators. Maurice Kay J refused the claimant permission to pursue challenges to the Commissioner’s decision based on alleged breaches of natural justice and of articles 3, 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

  19. In giving the claimant permission Maurice Kay J made the following observation:

    20. “The public interest, rather than any concluded view on the merits, disposes me to the view that full consideration should be given to the relationship (if any) between an immigration decision and a social security decision which turns on the same factual issue.”

    The very interesting and informative submissions which I have had the privilege of listening to have enabled me to give to a matter which I agree is one of considerable public interest and importance the full consideration that my brother envisaged.

  20. The substantive hearing commenced before me on 21 and concluded on 22 November 2001 when I reserved judgment. I gave the claimant permission to amend her grounds to include a more particularised allegation of breach of article 8 of the Convention. Very properly and fairly the Secretary of State did not oppose the claimant’s application to amend.

    21. The statutory setting

  21. It is common ground that the claimant’s right to enter the United Kingdom was at all material times subject to section 3(9)(b) of the Immigration Act 1971 which provides that:

    22. “A person seeking to enter the United Kingdom and claiming to have the right of abode there shall prove that he has that right by means of ... a certificate of entitlement issued by or on behalf of the Government of the United Kingdom certifying that he has such a right of abode.”

    It is also common ground that the claimant’s right to such a certificate was dependent upon her establishing that she had been married to Mr Kadir, who it is accepted was a British Citizen. The claimant’s case, ultimately upheld by two Adjudicators, was that she was and is a British Citizen by marriage.

  22. It is common ground that the claimant’s right to a widow’s pension depends upon section 48B(1) of the Social Security Contributions and Benefits Act 1992 which provides that:

    23. “A person (“the pensioner”) whose spouse died -

    (1) while they were married, and

    (2) after the pensioner attained pensionable age,

    shall be entitled to a Category B retirement pension by virtue of the contributions of the spouse if the spouse satisfied [certain conditions].”

    It is common ground that those conditions are satisfied and accordingly that the claimant’s right to a pension depended solely on the question of whether or not she had been married to Mr Kadir. It is not disputed that, if the claimant was indeed married to Mr Kadir, her rights are not adversely affected by what on that hypothesis would have been his bigamous marriage to BB.

  23. I need not go further into the statutory framework. From beginning to end of the immigration proceedings it was common ground between the claimant and the Entry Clearance Officer that the only matter in dispute was whether she had married Mr Kadir. That was the question of fact which both Adjudicators had to decide. Both decided it in favour of the claimant. Similarly from beginning to end of the social security proceedings it was common ground between the claimant and the Secretary of State for Work and Pensions that the only matter in dispute was whether she had married Mr Kadir. That was the question of fact which the Social Security Appeal Tribunal had to decide. It decided it in favour of the Secretary of State.

    24. The issues

  24. The claimant thus finds herself in an unenviable and invidious position and, I do not doubt, one which seriously affects her standing in and treatment by her community. As Mr André points out, the effect of the Commissioner’s decision is to brand her son M as illegitimate.

  25. Put very simply the claimant says: How can it be right, how can it be just or fair, for the Crown, for Government, for Ministers, in these circumstances to speak with more than one voice on the single question of whether I am the widow of Abdul Kadir? More specifically, she says: How can it be right for the Secretary of State for Work and Pensions and the Social Security Appeal Tribunal to dispute that I am Abdul Kadir’s widow when the Secretary of State for the Home Department accepts that I am his widow, when the Crown has accepted that, as Mr Kadir’s wife, and thus the wife of a British Citizen, I am myself a British Citizen, nay when “the Government of the United Kingdom” - see section 3(9)(b) of the 1971 Act - has issued me with a certificate to that effect? One can see the force of the argument: from the layman’s point of view it no doubt looks compelling, indeed perhaps no more than plain common sense.

  26. On her behalf Mr André puts forward four separate reasons why, he says, the position is indeed as the claimant asserts. His arguments are based upon issue estoppel, legitimate expectation, unfairness and human rights. I shall deal with them in that order.

    27. Issue estoppel

  27. Although it scarcely featured at all, and certainly not eo nomine, before either the Social Security Appeal Tribunal or the Commissioner, Mr André understandably puts issue estoppel at the forefront of his submissions. The point is an important one and deserves careful consideration.

  28. Issue estoppel has received perhaps more than its fair share of consideration by the Judicial Committee of the Privy Council and the House of Lords in recent times: see most recently Arnold v National Westminster Bank PLC [1991] 2 AC 93. For present purposes, however, I can go straight to the two classic statements by Diplock LJ (as he then was), the judge who was responsible for introducing into the jurisprudence of this country a term which had first been used by Higgins J in his dissenting judgment in the High Court of Australia in Hoystead v The Federal Commissioner of Taxation (1921) 29 CLR 537 at p 561.

  29. I go first to Thoday v Thoday [1964] P 181 where at p 197 Diplock LJ said this:

    30. “The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first species, which I will call “cause of action estoppel,” is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given upon it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim “Nemo debet bis vexari pro una et eadem causa.” In this application of the maxim “causa” bears its literal Latin meaning. The second species, which I will call “issue estoppel,” is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.

    But “issue estoppel” must not be confused with “fact estoppel,” which, although a species of “estoppel in pais,” is not a species of estoppel per rem judicatam. The determination by a court of competent jurisdiction of the existence or non-existence of a fact, the existence of which is not of itself a condition the fulfilment of which is necessary to the cause of action which is being litigated before that court, but which is only relevant to proving the fulfilment of such a condition, does not estop at any rate per rem judicatam either party in subsequent litigation from asserting the existence or non-existence of the same fact contrary to the determination of the first court. It may not always be easy to draw the line between facts which give rise to “issue estoppel” and those which do not, but the distinction is important and must be borne in mind.”

  30. Applying that analysis to the present case a finding by either the Adjudicator or the Social Security Appeal Tribunal as to the (in)validity of the claimant’s marriage to Mr Kadir would in principle give rise to an “issue estoppel”; a finding as to the genuineness or otherwise of the marriage deed at most to a “fact estoppel”.

  31. I can pass over Diplock LJ’s judgment on the subject in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at p 642E. I go to his judgment in Mills v Cooper [1967] 2 QB 459 at p 468E:

    32. “The doctrine of issue estoppel in civil proceedings is of fairly recent and sporadic development, though none the worse for that. Although Hoystead v Taxation Commissioner [1926] AC 155 did not purport to break new ground, it can be regarded as the starting point of the modern common law doctrine, the application of which to different kinds of civil actions is currently being worked out in the courts. That doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.

    Whatever may be said of other rules of law to which the label of “estoppel” is attached, “issue estoppel” is not a rule of evidence. True, subject to the qualification I have stated, it has the effect of preventing the party “estopped” from calling evidence to show that the assertion which is the subject of the “issue estoppel” is incorrect, but that is because the existence of the “issue estoppel” results in there being no issue in the subsequent civil proceedings to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation.”

  32. In relation to the general principles there are two other points I should mention. The first is that, consistently with the rule in Henderson v Henderson (1843) Hare 100, the doctrine of issue estoppel applies not only where a particular point has been raised and specifically determined in the earlier proceedings but also where in the subsequent proceedings it is sought to raise a point which could and therefore should have been, but was not, raised in the earlier proceedings: see Arnold v National Westminster Bank PLC.

  33. The other arises out of what Lord Reid in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at p 917C described as the “difficulty” with issue estoppel:

    34. “The difficulty which I see about issue estoppel is a practical one. Suppose the first case is one of trifling importance but it involves for one party proof of facts which would be expensive and troublesome; and that party can see the possibility that the same point may arise if his opponent later raises a much more important claim. What is he to do? The second case may never be brought. Must he go to great trouble and expense to forestall a possible plea of issue estoppel if the second case is brought? This does not arise in cause of action estoppel: if the cause of action is important, he will incur the expense: if it is not, he will take the chance of winning on some other point. It seems to me that there is room for a good deal more thought before we settle the limits of issue estoppel.”

  34. No doubt influenced by such considerations it is recognised that whereas, absent fraud or collusion, cause of action estoppel is absolute (see In re Waring (No 2) [1948] Ch 221 referred to in Arthur J S Hall & Co v Simons [2000] 3 WLR 543 at p 577C), issue estoppel is not absolute. Issue estoppel is not inflexible. There may be “special circumstances” where an issue estoppel will not operate: see Arnold v National Westminster Bank PLC. In particular, and of relevance to the present case, there is a recognised though narrow exception to issue estoppel where new evidence which could not have been ascertained before by reasonable diligence has come to light which “entirely changes the aspect of the case”: see Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at p 545E per Lord Diplock and Arnold v National Westminster Bank PLC at p 109B. This is, of course, quite a stringent test.

  35. So much for the general principles. Before I address the central issue, however, there are certain preliminary matters that I should mention if only to clear them out of the way.

  36. (1) Res judicata estoppels binding a person in an official capacity bind his successors as privies. A recent example can be found in Asher v Secretary of State for the Environment [1974] Ch 208 (see at pp 210F, 225A).

  37. (2) Subject to the constitutional principles (i) that a tribunal of limited jurisdiction cannot be permitted conclusively to determine the limits of its own jurisdiction and (ii) that a public official cannot be debarred from performing his statutory duty, the decision of an inferior tribunal with a limited jurisdiction and a strictly limited function to perform is capable of creating an issue estoppel: see Crown Estate Commissioners v Dorset County Council [1990] Ch 297 at p 312C. In that case Millett J held that a decision of the Chief Commons Commissioner under the Commons Registration Act 1965 gave rise to an issue estoppel. Barber v Staffordshire County Council [1996] 2 All ER 748, involving a decision of an industrial tribunal, is another example. It was followed in Lennon v Birmingham City Council [2001] EWCA Civ 435, another case involving a decision of an employment tribunal as it is now called.

  38. (3) Whatever the precise ambit of issue estoppel in public law it is clear that issue estoppel is in principle capable of applying to public law determinations: see Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 at pp 289C, 296C, 297D. In that case the House of Lords held that the decision of an inspector in relation to an enforcement notice under the Town and Country Planning Act 1971 gave rise to an issue estoppel binding on the local planning authority.

  39. (4) It makes no difference in principle that the party sought to be bound by an issue estoppel is the Crown. As Denning J said in Robertson v Minister of Pensions [1949] 1 KB 227 at p 231:

    40. “The Crown cannot escape by saying that estoppels do not bind the Crown, for that doctrine has long been exploded.”

    That the doctrine of issue estoppel is capable of extending to bind the Crown is established by authority. In Queensland Trustees Ltd v Commissioner of Stamp Duties (Q) (1956) 96 CLR 131 the High Court of Australia held that the Commissioner of Stamp Duties, and thus the Crown whom he represented, was bound by an issue estoppel arising out of the earlier litigation between the Commissioner and the same taxpayer in In re Sharpe, Queensland Trustees Ltd v Commissioner of Stamp Duties (1944) QSR 26, (1945) QSR 1. Indeed, in coming to that conclusion the High Court was merely following Hoystead v The Federal Commissioner of Taxation [1926] AC 155, (1925) 37 CLR 290, where the Privy Council, reversing the High Court of Australia, (1921) 29 CLR 537, held that the Commissioner was bound by an issue estoppel arising out of earlier litigation in Hoystead v Federal Commissioner of Taxation (1920) 27 CLR 400.

  40. It is conventional learning that res judicata estoppels operate for or against not only the parties but also those who are privy to them in blood, title or interest. It is not suggested that there can in the present case be any privity either of blood or of title. The crucial question is whether there is either an identity of parties or privity of interest.

  41. In Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at p 515C Sir Robert Megarry VC explained the principle lying behind the concept of “privity of interest” as follows:

    42. “ First, I do not think that in the phrase “privity of interest” the word “interest” can be used in the sense of mere curiosity or concern. Many matters that are litigated are of concern to many other persons than the parties to the litigation, in that the result of a case will at least suggest that the position of others in like case is as good or as bad as, or better or worse than, they believed it to be. Furthermore, it is a commonplace for litigation to require decisions to be made about the propriety or otherwise of acts done by those who are not litigants. Many a witness feels aggrieved by a decision in a case to which he is no party without it being suggested that the decision is binding upon him.”

  42. The Vice-Chancellor then continued in a passage which has very recently been approved by the House of Lords in Johnson v Gore Wood & Co [2001] 2 WLR 72 at p 91D:

    43. “Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase “privity of interest.” Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa.”

  43. Now that was a case in which the defendant W in an action for breach of copyright brought by G sought to set up as a defence, by way of issue estoppel, the fact that in a previous action against another company D, with whom W had a trade relationship, G had failed to establish infringement. The plea failed. There is an illuminating passage in Sir Robert’s judgment at p 515H:

    44. “Suppose that in the [D] action the plaintiff, [G], had succeeded, instead of failing. Would the decision in that action that [W] had indirectly copied the [G] drawings be binding on [W], so that if sued by [G], [W] would be estopped by the [D] decision from denying liability? [Counsel] felt constrained to answer Yes to that question. I say “constrained” because it appears that for privity with a party to the proceedings to take effect, it must take effect whether that party wins or loses. ... In such a case, [W] would be unable to deny liability to [G] by reason of a decision reached in a case to which [W] was not a party, and in which [W] had no voice. Such a result would clearly be most unjust. Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicions. A defendant ought to be able to put his own defence in his own way, and to call his own evidence. He ought not to be concluded by the failure of the defence and evidence adduced by another defendant in other proceedings unless his standing in those other proceedings justifies the conclusion that a decision against the defendant in them ought fairly and truly to be said to be in substance a decision against him. Even if one leaves on one side collusive proceedings and friendly defendants, it would be wrong to enable a plaintiff to select the frailest of a number of possible defendants, and then to use the victory against him not merely in terrorem of other and more stalwart possible defendants, but as a decisive weapon against them.”

  44. That the doctrine of issue estoppel is capable of extending to bind the Crown is, as I have said, established by authority. But there is surprisingly little authority seeking to work out the implications of this principle. What for this purpose is meant by the Crown? Who precisely is bound by an issue estoppel binding the Crown?

  45. In Vernon v Inland Revenue Commissioners [1956] 1 WLR 1169 the question was raised as to whether if the Attorney-General, acting in his role as guardian of charities and thus for the Crown in its capacity as parens patriae, was estopped by an earlier order of the court the Commissioners of Inland Revenue were also estopped. Because he held that the Attorney-General was not in fact estopped, Upjohn J did not have to consider what at p 1179 he described as the “interesting” question whether the Commissioners would also have been estopped.

  46. In Society of Medical Officers of Health v Hope (Valuation Officer) [1960] AC 551 the House of Lords held that a decision of a local valuation court does not create an estoppel per rem judicatam when the valuation list which was the subject of the decision has come to the end of its statutory life and that in any event the position of a valuation officer was such that he could not properly be described as a party so as to make the proceedings a lis inter partes. Beyond this, Lord Keith of Avonholm queried at p 568 whether:

    47. “the local valuation officer owing such a duty to an ever-changing body of ratepayers can be regarded as always the same party in the sense in which that expression is used for the application of the rule of res judicata.”

  47. In The State of Queensland v The Commonwealth of Australia (1977) 139 CLR 585 the question arose as to whether there could be an issue estoppel in proceedings to which both the State of Queensland and the Attorney-General for the State of Queensland were parties arising out of previous proceedings to which only the State of Queensland had been a party. Referring to a submission (see at p 614) that there could be no issue estoppel because the parties were different, inasmuch as the Attorney-General of the State of Queensland represented not the body politic but the people of that State, Aickin J said at p 615 that:

    48. “the presence of the Attorney-General as an additional party prevents an issue estoppel from arising. Generally speaking when an Attorney-General sues to enforce a public right or liberty he does so as representing Her Majesty’s subjects, and not the body politic of the government unit in which he holds office.”

  48. In Brisbane City Council v Attorney-General for Queensland [1979] AC 411 the question was raised as to whether in a relator action brought by the Attorney-General on the relation of S and B against a local authority and developers asserting that certain land was subject to a valid charitable trust, that is asserting a right belonging to the public at large, the Attorney-General was estopped by the decision in earlier proceedings which he had brought on the relation of S against the same local authority and developer to restrain an alleged excess of power by the local authority in respect of the sale of the same land. The claim of estoppel failed on other grounds but at p 426A Lord Wilberforce said that

    49. “It must be doubtful whether in these circumstances the necessary identity of parties between the two proceedings exists”.

  49. In Percy v Hall [1997] QB 924 the Court of Appeal had to consider a point which had earlier arisen for direct decision by the Divisional Court in the related case of Bugg v Director of Public Prosecutions [1993] QB 473. Bugg was an appeal by way of case stated by, inter alios, Miss Percy and Miss Greaves against their conviction in criminal proceedings which had been brought against them by the Director of Public Prosecutions. Percy was an appeal by the defendants in civil proceedings brought by Miss Percy and Miss Greaves against certain Ministry of Defence police officers and relating to the same events as had led to their prosecution. In passing Simon Brown LJ at p 934E said:

    50. “Mr Pleming for the plaintiffs not surprisingly places considerable reliance on the decision in Bugg’s case. Plainly, as he recognises, this court is not bound by Bugg’s case - and, of course, the MOD not having been a party to those proceedings, no question of issue estoppel arises.”

  50. Now as Mr André points out there may in fact have been other compelling reasons why in Percy v Hall there could be no issue estoppel. In the first place there is high authority that issue estoppel has no place in English criminal law: see Hunter at p 541A referring to R v Humphreys [1977] AC 1. Secondly, and referring back to Aickin J’s description of the Attorney-General as “representing Her Majesty’s subjects, and not the body politic”, he points to the fact that, as explained by Mansfield and Peay in their book ‘The Director of Public Prosecutions’, quoting words used by Sir Thomas Hetherington, himself a former Director of Public Prosecutions:

    51. “The second distinguishing feature of the DPP was his independence from those conducting investigations into crime. As a prosecutor the DPP acted neither for nor at the behest of the police but ‘for the public [and] in the public interest’.”

    Moreover, as Mr André observes, section 3 of the Prosecution of Offences Act 1985 provides that the Director of Public Prosecutions is to discharge his functions “under the superintendence of the Attorney General”.

  51. But even if Mr André, to whose ingenious and learned argument on the point I am indebted, is correct in his analysis of Percy v Hall, the fact remains that none of the cases to which I have just referred provides any support at all for the operation of the doctrine of issue estoppel in such a way as would assist the claimant. There is in the authorities to which I have referred no support for the proposition that there is for the purposes of issue estoppel either an identity of parties or any sufficient privity of interest as between different emanations of the Crown, as between different Ministers of the Crown or as between different branches of the Government or the body politic. On the contrary the dicta in cases such as Queensland v Australia and Brisbane v Queensland as well as Percy v Hall suggest if anything that there is in fact neither identity of parties nor any sufficient privity of interest between different Ministers of the Crown.

  52. Despite Mr André’s able arguments I am satisfied that there can here be no issue estoppel. In my judgment there is neither identity of parties nor any sufficient privity of interest as between the Entry Clearance Officer and/or the Secretary of State for the Home Department on the one hand and the Secretary of State for Work and Pensions on the other hand. On that simple but fundamental ground the claimant’s case must fail insofar as it is based on issue estoppel.

  53. A number of different considerations drive me to this conclusion.

  54. In the first place the Secretary of State for Work and Pensions (in which expression I include his statutory predecessor the Secretary of State for Social Security) was simply not in any normal sense of the word a “party” to the immigration proceedings. As Mr Ward pointed out, at the time of the claimant’s appeals to the Adjudicators the “parties” to such an appeal were specified by rule 7(1)(b) of the Immigration Appeals (Procedure) Rules 1984 as being the appellant - that is, the claimant - and the Entry Clearance Officer. The Secretary of State for Work and Pensions was not in any meaningful sense of the word a “party” to those appeals, nor could he have been, even if he had wished to be.

  55. Secondly, there is, in my judgment, no “sufficient degree of identification” between the Entry Clearance Officer and/or the Secretary of State for the Home Department on the one hand and the Secretary of State for Work and Pensions on the other hand as to bring them within the test in Gleeson.

  56. Thirdly, there is, as I have said, no support in the authorities for the proposition that there is for the purposes of issue estoppel either an identity of parties or any sufficient privity of interest as between different Ministers of the Crown. On the contrary the dicta in cases such as Queensland v Australia, Brisbane v Queensland and Percy v Hall suggest that there is neither.

  57. Fourthly, as Mr Ward submits, the policy rationale for the doctrine of estoppel per rem judicatam was explained by Lord Maugham LC in New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 at p 19 as follows:

    58. “The doctrine of res judicata is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.”

    Plainly, as Mr Ward submits, this rationale cannot apply where (as here) a party has been unable to participate in the previous proceedings or to put his case. In this regard the passage from Sir Robert Megarry’s judgment in Gleeson which I have quoted in para [42] above is particularly apposite. Moreover Mr Ward must be right when he adds that this consideration applies with at least as much force in a case concerning two Government departments as it does in private law. As he says, different departments may have access to different documents, knowledge of differing contexts, and sound policy or tactical reasons, which may not be shared by another department, for presenting a case in a particular way. These practical but nonetheless important concerns bring to mind Lord Reid’s comments in Carl Zeiss.

  58. Fifthly, I think there is force in Mr Ward’s contention that if the Secretary of State for Work and Pensions were to be bound by an Adjudicator’s findings of fact then there might, just as in the present case, be substantial prejudice to the proper administration of the social security system. The Secretary of State for Work and Pensions had available to him important evidence about the marriage deed which appears not to have been available to the Entry Clearance Officer. There is no reason why it should have been. The business of Government today is so vast and complex that no department can be expected to have (even assuming that it would be legally entitled to demand) access to every piece of relevant information about a particular citizen in whom it has an interest held by other departments. But why, it might be asked, should the administration of the social security system be affected, and public money be spent meeting what in fact may be an inadmissible claim to benefit, merely because a different Government department, focussing on a different problem, has proceeded in understandable ignorance of important information held within the social security system? It is, in my judgment, no answer to this, as it seems to me major, objection to the claimant’s case that in an appropriate case it might perhaps be open to a Government department to seek to escape from an otherwise binding estoppel by reliance upon what is said to be the discovery of new evidence entirely changing the aspect of the case. The test, as I have said, is stringent and the escape route correspondingly narrow. Would it have availed the Secretary of State for Work and Pensions in the present case? Perhaps. Perhaps not.

  59. The point in fact goes much wider than the differences in the present case between the Secretary of State for the Home Department and the Secretary of State for Work and Pensions. If the doctrine of issue estoppel is wide enough to defeat the Secretary of State for Work and Pensions in the present case, just how far does it go? Understandably, perhaps, in the circumstances Mr André was unable to formulate any limit to the rule he was contending for. Indeed it is difficult to see what limits there could be. On his approach there would necessarily be, as it seems to me, if not an identity of parties then at least a sufficient privity of interest between each and every Minister of the Crown. Putting it at its lowest, the claimant’s case would seem to carry with it as a corollary that every judicial determination between a particular citizen and any Minister of the Crown or Government department would in principle give rise to issue estoppels binding every other Minister of the Crown or Government department. Indeed, on one view, the claimant’s case comes perilously close to asserting that any such determination would in principle give rise to issue estoppels binding the entire Government of the United Kingdom (whatever precisely is meant by that) or even the Crown in all its emanations. In fact that is to all intents and purposes exactly what Mr André seemed to be driving at when he used the two words “Crown” and “Government” as the connecting factor justifying his assertion that for the purposes of issue estoppel the Secretary of State for the Home Department (or, more precisely, the Entry Clearance Officer) and the Secretary of State for Work and Pensions are to be treated as being the same parties. As he put it in his skeleton argument, they are both parts of “the Government machinery and policy, embodied by the Crown”. Whatever the merit of the point in terms of high constitutional theory, the conclusion which Mr André seeks to draw from it, as it seems to me, simply cannot be right.

  60. The truth is that, whether he likes it or not, what lurks behind Mr André’s case is some version of the proposition that the Crown is one and indivisible, a proposition which he seeks in effect to transplant entire into the law of issue estoppel. Now whatever may in modern conditions be the ambit of that doctrine (something which was debated in Town Investments Ltd v Department of the Environment [1978] AC 359 and in M v Home Office [1992] QB 270, [1994] 1 AC 377, but on which I have heard no argument and which I do not propose to consider further) it cannot in my judgment be the basis of an issue estoppel of the kind contended for by Mr André.

  61. At the end of the day, as it seems to me, the clearest and most convincing answer to the claimant’s case on issue estoppel is that provided by Mr Ward when he took me to the following passage in Sir William Wade’s classic book, Administrative Law (eighth edition), at pp 45-46:

    62. “The Crown’s legal powers, whether prerogative or statutory, must be exercised by the sovereign personally as a matter of law, eg by Order in Council or letters patent or royal warrant. In practice these powers are controlled by ministers, since convention requires that the Crown should act as its ministers advise in all constitutional affairs. ... The Crown itself, however, has relatively few important legal powers, except in the capacity of employer. In almost all other areas administrative powers are statutory, and it has long been the practice for Parliament to confer them upon the proper minister in his own name. The Act will say ‘The minister may make regulations’ or ‘ the minister may appoint’ or the minister may approve’. The minister will of course be acting as a minister of the Crown and on behalf of the Crown. But his powers and duties under the Act will in law be his alone. This is of great legal and constitutional importance, since the minister as such has none of the Crown’s prerogatives and immunities. His unlawful actions may be invalidated, or he may be compelled to perform his duties, by remedies which do not lie against the Crown; and judgments may be enforced against him personally in ways which are impossible in the case of the Crown. If on the other hand the Act had conferred the powers upon the Crown itself, as by saying ‘Her Majesty may (etc.)’, the Crown’s immunity would prevent control by the courts, at least in theory. The settled practice of conferring powers upon designated ministers therefore greatly assists the operation of legal remedies. The minister is treated in law as a private person with no special privileges. He is liable to compulsory remedies, such as injunctions, and he may be made liable for contempt of court. This is the essence of the rule of law.” [emphasis added]

  62. Sir William then continues by observing that:

    63. “Fundamental as these principles are, they have not escaped being called into question, either inadvertently or intentionally, by judges with heretical constitutional ideas.”

    A footnote asserts in withering terms that statements by Lords Diplock and Simon of Glaisdale in Town Investments Ltd v Department of the Environment “are, as legal propositions, radically misconceived and ignore constitutional principles”.

  63. A mere puisne approaches with all due diffidence such a clash of the titans but in my judgment Sir William Wade’s analysis is not merely soundly based in principle but also supported, as he points out, by Lord Woolf’s analysis in M v Home Office. It follows, as Mr Ward submits, that it is simply wrong in principle to elide the position of the Secretary of State for the Home Department (or the Entry Clearance Officer) with that of the Secretary of State for Work and Pensions.

  64. There are three final arguments that I should address before leaving the topic of issue estoppel. The first is the assertion by Mr André that the decisions of the Adjudicators that the claimant was married to Abdul Kadir constituted a judicial decision in rem binding on the world generally. That argument, with all respect to Mr André, is wholly misconceived. As explained in Spencer Bower, Turner and Handley on Res Judicata (third edition) at para 234, a judicial decision in rem is one which determines the status of a person, that is the jural relation of the person to the world generally. The findings of the Adjudicators did not “determine” the status of the claimant in this sense: see the discussion in Spencer Bower at para 239. In any event the argument is concluded against Mr André, as it seems to me, by the comprehensive statutory code to be found in Part III of the Family Law Act 1986, and in particular by the combined effect of sections 55(1), 58(2) and 58(4) of that Act. The plain policy of the legislature is that determinations in rem as to marital status (that is, as section 58(2) puts it, determinations “binding on Her Majesty and all other persons”) are to be made only in accordance with the special procedures under that Act, including the provision in section 59 for the participation in the proceedings of the Attorney-General.

  65. Next Mr André pressed me with the passage in Denning J’s judgment in Robertson v Minister of Pensions where at p 232 he said:

    66. “The department itself is clearly bound, and as it is but an agent for the Crown, it binds the Crown also; and as the Crown is bound, so are the other departments, for they also are but agents of the Crown. The War Office letter therefore binds the Crown, and, through the Crown, it binds the Minister of Pensions.”

  66. Now as is pointed out both by Sir William Wade in his Administrative Law at pp 339-340 and by the editors of de Smith, Woolf and Jowell’s Principles of Judicial Review (1999 edition) at para 12-026, there may be some room for debate about the precise ambit of the doctrine espoused by Denning J. That is not a debate which needs concern me here for there are, as it seems to me, two reasons why on any view the case cannot assist the claimant.

  67. In the first place, as Mr Ward points out, Denning J’s observations have to be read in the context of the particular facts of the case. Those facts, as set out at pp 227-228 and 229-230, understandably led him to the crucial finding (on p 232) that the War Office, without referring the applicant to the Minister of Pensions, “assumed authority over the matter” and gave the applicant an assurance in circumstances where he was “entitled to assume that they had consulted any other departments that might be concerned, such as the Ministery of Pensions, before they gave him the assurance”. It was the combination of that assumption of authority and the giving of that assurance which led to the conclusion that the War Office’s letter bound the Minister of Pensions. In the present case there was no such assumption of authority by anyone and the claimant was never given any such assurance by anyone.

  68. Secondly, and in any event, it seems to me with all respect to Mr André that save only for the point referred to in para [38] above Robertson has nothing whatever to do with issue estoppel. It is concerned with a wholly different branch of the law of estoppel, that is estoppel by representation. What I am concerned with is the law of estoppel per rem judicatam.

  69. Mr André’s other argument was based on the decision of the Court of Appeal, Criminal Division, in R v Blackledge [1995] TLR 578 that, in the context of an argument based on non-disclosure of relevant material by the Crown in criminal proceedings,

    70. “Documents in the possession of one or other government department involved in the inter-departmental consideration of [export] licences were to be regarded for the purposes of the instant case as in the possession of the Crown as an indivisible entity.”

    I have absolutely no quarrel with this decision but, arising as it does in a wholly different context, it seems to me to throw absolutely no light on anything I have to decide.

  70. Accordingly, the claimant’s case insofar as it is based on issue estoppel fails and must be rejected.

    71. Legitimate expectation

  71. Mr André submits that the decisions in the immigration proceedings raised a legitimate expectation on the part of the claimant that her married status would be recognised, as he put it, by all Government departments.

  72. There are, in my judgment, at least two reasons why this claim cannot succeed.

  73. In the first place, as Mr Ward points out, the doctrine of legitimate expectation concerns fairness in administrative decision-making. In my judgment it cannot have any application to judicial proceedings of the kind with which I am concerned. In that context the relevant doctrines are those of estoppel per rem judicatam and abuse of process. Mr Ward submits, and I agree, that there could be no legitimate expectation (in the technical sense in which that phrase is used) that the Social Security Appeal Tribunal would consider itself bound by the Adjudicators if the conditions for an issue estoppel were not made out.

  74. Secondly, as Mr Ward says, this is merely couching the same complaint, which fails if put on the basis of issue estoppel, on an equally inadmissible basis. Mr André relies, as he accepts, on the same arguments as to the identity of the parties as those which he put forward in relation to issue estoppel. Mr Ward ripostes, and I agree, that this argument fails for substantially the same reasons as the claim based on issue estoppel.

  75. In support of this submission Mr Ward points to Lord Diplock’s statement of principle in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p 408F to the effect that a decision may be held to be in breach of legitimate expectations if it affects a person:

    76. “by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.” [emphasis added]

    He refers me also to R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 where, in the context of a discussion of the principle that administrative action in breach of a legitimate expectation may be so unfair as to be an abuse of power, Lord Woolf MR at p 244G (para [66]) explained that abuse of power might be made out in circumstances involving

    “not one but two lawful exercises of power (the promise and the policy change) by the same public authority, with consequences for individuals trapped between the two.” [emphasis added]

  76. Whether for this purpose the “decision-makers” are to be taken as being the administrative decision-makers (the two Secretaries of State) or the judicial decision-makers (the Adjudicators and the Social Security Appeal Tribunal) the insuperable difficulty faced by the claimant is that there were two different public authorities involved in the present case. Her difficulty has been created not by any change in stance by one decision-maker but rather by the inconsistent decisions of two different decision-makers.

  77. So, says Mr Ward, and I agree, the decisions of the Adjudicators cannot have raised any legitimate expectation that either the Secretary of State for Work or Pensions or the Social Security Appeal Tribunal would be bound, or consider themselves bound, by findings of fact on matters which it fell to the Tribunal itself to determine.

  78. I agree with Mr Ward when he submits that in the present case the claimant could have no legitimate expectation other than that her claim to a widow’s pension would be determined by the appropriate authorities, and in particular by the Social Security Appeal Tribunal, according to the relevant statutory rules and procedures governing the determination of such claims.

    79. Unfairness

  79. Mr André complains that by re-opening the issue of the marriage the Secretary of State for Work and Pensions, the Social Security Appeal Tribunal and the Commissioner are inflicting protracted and grossly unfair hardship on the claimant. He refers to the judgment of Lord Phillips of Matravers MR in R (Zeqiri) v Secretary of State for the Home Department [2001] EWCA 342 and in particular to the passage in para [68] where Lord Phillips, considering unfairness caused by delay, said that:

    80. “The prolonged period of uncertainty as to his fate will have caused him mental stress and he will have been forced to subsist without the benefits of those whose claim to asylum has been recognised. ... I consider that this hardship is material to the question of whether it would now be fair for the Secretary of State to remove [him] to Germany”.

  80. Mr André says that there must be finality of decisions, especially where to re-litigate would be oppressive. He says that the claimant, who is now 71 years old, has been forced to endure unfair hardship as a result of protracted litigation which has on any view, he says, been going on since August 1995 (see para [7] above).

  81. Now this is really, as it seems to me, an illegitimate attempt to present as an argument founded on alleged “unfairness” an argument which fails when correctly presented as one based on issue estoppel or abuse of process. There was in my judgment nothing “unfair” in the Secretary of State for Work and Pensions requiring the claimant’s claim to a widow’s pension to be determined by the appropriate authorities, in particular by the Social Security Appeal Tribunal, and according to the relevant statutory rules and procedures governing the determination of such claims. There was in my judgment nothing “unfair” in the Social Security Appeal Tribunal treating itself as free to differ from the Adjudicators. Absent any binding issue estoppel, I can see absolutely nothing “unfair” in the proceedings before either the Tribunal or the Commissioner.

    82. Human rights - article 8

  82. Finally, Mr André submits that by seeking to re-open the question of the marriage and inflicting on the claimant protracted litigation on that issue the Secretary of State for Work and Pensions has interfered with the claimant’s right under Article 8 to respect for her family life. Similarly, he says, by failing to stop this protracted litigation the Social Security Appeal Tribunal and the Commissioner have also interfered with her right to respect for her private life. In this connection he referred me to Abdulaziz, Cabales and Balkandali v United Kingdon (1985) 7 EHRR 471 at p 497 (para [67]) and to the discussion in Clayton and Tomlinson’s Law of Human Rights at para 13.115.

  83. Correctly, in my judgment, Mr Ward submits that there are two flaws in the case founded on Article 8. The first is that the crucial decision for this purpose is that of the Social Security Appeal Tribunal in February 1998, a decision which pre-dated the coming into force of the 1998 Act on 2 October 2000. Save to the limited extent indicated in section 22(4) of the Act, the 1998 Act is not retrospective: see section 22(3), Wilson v First County Trust Ltd (No 2) [2001] EWCA Civ 633 [2001] 3 WLR 42 at pp 51-52 (paras [20]-[21]), R v Lambert [2001] UKHL 37 [2001] 3 WLR 206 and R v Kansal (No 2) [2001] UKHL 62 [2001] 3 WLR 1562. And the simple fact is that the claimant cannot take advantage of section 22(4) because the case before me, comprising proceedings brought against the Commissioner by the claimant, and not proceedings brought by the Commissioner, plainly falls within section 7(1)(a) of the Act and not section 7(1)(b). For the purposes of sections 7 and 24 the relevant proceedings are not the proceedings before the Social Security Appeal Tribunal or the Commissioner but the judicial review proceedings that are currently before me. And these proceedings, as I have said, are brought by the claimant and not by any public authority.

  84. Secondly, as Mr Ward points out, there is no lack of respect for family life in requiring the claimant to litigate in a manner which is not precluded by any issue estoppel and which is not otherwise an abuse of the process. Moreover, he submits, the requirement of domestic law, as in effect I have found it to be, that the claimant litigate the same issue twice inasmuch as it affects two separate Government departments regulated by different statutory rules and procedures, comfortably meets the twin tests of “necessity” and “proportionality” under Article 8(2). I agree. In effect Mr André is asserting that the established principles of estoppel per rem judicatam and abuse of process fail to pass muster under Articles 6 and 8 of the Convention. There is, in my judgment, no basis at all for such a submission.

    85. Conclusion

  85. For all these reasons I conclude that Mr Ward is right when he submits that the Secretary of State for Work and Pensions was not bound in any way by the decisions of the Adjudicators.

  86. That being so, it necessarily follows, in my judgment, that although the Social Security Appeal Tribunal was entitled to take into account the decision which the Adjudicator had come to in July 1997, it was neither permitted let alone required to consider itself bound by that decision. The Social Security Appeal Tribunal is not empowered to delegate its judicial functions to anyone else. So unless the Secretary of State for Work and Pensions was himself bound in some way by the Adjudicator’s decision the Tribunal plainly could not be. Unless the Secretary of State for Work and Pensions was in some way precluded from disputing before the Tribunal the fact of the claimant’s alleged marriage (and in my judgment he was not), that remained a matter in issue between the parties which it was the duty of the Tribunal to determine. It was not open to the Tribunal to entrust its fact-finding functions to the Adjudicator. Still less was it obliged to.

  87. There was no error of law, nor in my judgment any other judicially reviewable error, on the part of either the Social Security Appeal Tribunal or the Commissioner. The claimant’s application accordingly fails and must be dismissed.

    88. Delay

  88. There is one final matter I should mention though it will not, I fear, avail the claimant.

  89. I recognise that there are a number of reasons why this particular case took as long as it did to work its way through the social security appeals system. But, making every allowance for the existence of various factors which were beyond the parties’ control, I have to say I am dismayed to think that a claim to a widow’s pension made in August 1995 (see para [7] above) should have taken until February 1998 to be decided by the Social Security Appeal Tribunal (para [10] above) and should not have been finally determined by a Commissioner until March 2001 (para [14]). Widow’s pension is a benefit paid weekly or monthly to those who in the very nature of things are likely to be elderly and who may be living in financially straightened circumstances. One really would have hoped that claims to a widow’s pension could be finally resolved within a period measured at most in months rather than years. What, after all, is the comfort or consolation to an elderly claimant of the dismal knowledge that, if her claim is ultimately established, she (or perhaps her estate) will at some time in the perhaps too distant future be paid the arrears, even if they are, as they will be, backdated to the date of the original claim?

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