England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISON
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 February 2006

The Honourable Mr Justice Silber :


 


1. Mrs Irene Johnson brought the present application in order to judicially review what is described in the Claim Form as the

"decision evidenced in a letter dated 25 April 2005 not to agree to make or lay statutory instrument before Parliament to amend the National Assistance (Assessment of Resources) Regulations 1992 (as amended)."

Permission to proceed was granted by Moses J (as he then was) on a paper application in terms to which I will refer shortly.

2. Sadly Mrs Johnson died on 9 September 2005. Probate of her estate has been granted to her executors.
3. Mr Richard Bird, who is the Chairman of the Trustees at Age Concern South Lakeland ("the applicant"), has applied to be substituted as the claimant for Mrs Johnson. There are further applications by him to add an additional ground of challenge under article 14 of the European Convention on Human Rights ("ECHR") and for a protective costs order.
4. Each of these applications is contested by the defendant, but who does accept that if the other two applications are granted, the application to include a new ground of challenge would not be opposed.

II. The Application to Substitute the Applicant as the Claimant.

5. The background to this application is that Mr David Emmett, who is one of the executors of Mrs Johnson's estate, has explained that "the estate cannot justify even limited exposure to costs". He adds that he is happy for the applicant "to pursue this matter on behalf of Mrs Johnson".
6. The applicant has explained in a witness statement that:

"I believe that the issue in this case is extremely important and one that affected not just Mrs Johnson but also affects many older people and also those of other age groups without the capacity to make decisions for themselves".

7. Mr Bird states in his witness statement that the charitable objectives of his charity oblige the trustees to pursue matters which affect the live interests of older people in generally. The applicant also said that other older people around the country, who are made subject to guardianship orders, are made to stay in residential accommodation and that a financial assessment of the individual concerned is then carried out. In consequence, he says that those older people with savings and or property worth more than the statutory limits are then compelled to pay the full cost of their care even though they had no choice over where they were to live. The applicant explains that it is necessary for an application to be made for a protective costs order in order to protect him and he says that his legal representatives have acted and will act "pro bono".

III. CPR Part 19.2 (4)

8. The defendant objects to the application for the applicant to be substituted as a claimant and Mr Cragg on behalf of the applicant relies on two different provisions in the CPR. First, he sought to rely CPR Part 19.2, which provides that:

"(4) the court may order a new party to be substituted for an existing one if-

(a) the existing party's interest or liability has passed to the new party; and

(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings".

9. He also drew attention to CPR Part 19.4, which is headed "Procedure for adding and substituting parties" but he accepts that this provision does not confer any power on the court to substitute this applicant as a claimant over and above what is set out in CPR 19.2 (4).
10. The insuperable obstacles for the applicant is that he cannot show in the words of CPR Part 19.2 (4) (a) that:

"the existing party's interest or liability has passed to the new party [namely the applicant]".

11. It is common ground that after Mrs Johnson's death and after probate was granted, any interest that she had in this action passed to her executors. Mr Cragg frankly admitted that he was in difficulties in showing how the estate's interest or Mrs Johnson's interest had in the words of the CPR "passed" to the applicant. There has been no assignment in this case or any transfer to the applicant and so, I unhesitatingly conclude that the applicant cannot rely on CPR Part 19.2 (4).

IV. CPR Part 3.1 (2)

12. Mr Cragg then contends, correctly in my view that Part 19.2 (4) is permissive and so it does not preclude consideration of the application to join the applicant under any other appropriate provision. He submits that, an appropriate provision is to be found in Part 3.1 (2), which insofar is relevant, provides that:

"Except where these Rules provide otherwise, the court may…

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective"

13. Mr Cragg points out that the overriding objective is of enabling the court to deal with cases "justly" (CPR Part 1.1 (11), and that "includes so far as practicable… (d) ensuring that it is dealt with expeditiously and fairly"
14. His submission is that he can derive assistance from the wording of Moses J (as he then was) because when granting permission, he wrote that:

"The claimant is in great difficulty; it seems to me she is confusing two unrelated points, the requirement to reside in a particular place, which cannot be described as a breach of Art 8 or A1P1 and the charging requirement which does not appear of itself to be impugned. But the points will not go away and will become of increasing importance.. it will, probably turn out to be just as cheap and expeditious to have a substantive hearing as an opposed renewal hearing so I have given leave".

15. Mr Cragg then says in the light of that comment it is appropriate for a person representing a charity with an interest in this area to step into the shoes of Mrs Johnson or her executors to proceed with this case. Miss Rhee for the defendant submits that it would not be just or appropriate to accede to the applicant's submissions. I accept that the applicant considers for good cause that the issue raised on the original claim is important for his members.
16. Nevertheless, there are a number of significant countervailing factors which I will now set out in no particular order. First, if, as the applicant contends, there are many other people who are affected by this issue, there would be no reason why one of them will not or might not bring a similar claim. Mr Cragg says that some of them would not qualify for legal assistance and so they would have to fund their case but that does not seem a valid reason why I should not take into consideration the availability of other potential claimants to pursue the point in issue. I cannot see what is wrong in expecting any such potential claimant to fund their own claims if they have sufficient assets. Second, if Mr Bird is not correct and there are not many other people affected by the decision under challenge in the way that Mrs Johnson was, that would militate against a need for this issue to be resolved.
17. Third, the Administrative Court is at present overrun with cases and applications. The number of claims brought in 2005 was substantially larger than that in 2004. My experience as any Administrative Court Judge is that there appear to be an increasing number of cases needing urgent consideration. Bearing in mind that one of the considerations taken into account in dealing with cases justly is that of "allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases" (CPR Part 1.1 (2) (e)), I should be reluctant to increase the present heavy load of the Administrative Court unless there is a good case for doing so. Thus if I were to accede to the present application, the hearing of claims of other litigants would be delayed. In the light of the other factors to which I have referred and to which I will refer concerning the merits of the applicant's claim, I would not be complying with the overriding objectives of the CPR to allow the applicant to be substituted as the claimant.
18. Fourth, in order to decide whether granting leave to join the applicant on the basis of the overriding objectives, it is relevant to look at the merits of this claim because if the applicant had a very strong case, it might be unjust to deprive him of the opportunity of pursuing it. By the same token, if the applicant's case is weak, that is a factor against invoking CPR Part 3.1(2). I have serious doubts as to whether the applicant Mr Bird is a "victim of [an] unlawful act" as required by section 7 of the Human Rights Act 1988. Lord Lester QC and Mr David Pannick QC in their book Human Rights Law and Practice 2^nd edition (2004) write in paragraph 2.7.3 that "a sufficient interest (for example that of a representative body or a pressure group) does not suffice" to be a "victim". There are some cases where a public interest action can be brought by a representative group. This is usually because either there is a challenge that delegated legislation is ultra- vires its primary legislation or there is a claim for an advisory declaration that primary or secondary legislation must be read and given effect to in a way which is compatible with the convention rights under section 3 of the Human Rights Act 1998. The present claim does not fall into either category and the applicant's claim to be a "victim" appears weak.
19. Fifth, though I only heard brief submissions on the merits of the substantive claim when considering the costs protection order, my provisional view was that the claimant might well have difficulties in sustaining her case under articles 8, 14 and 1 of the First Protocol because even if Mrs Johnson's rights under any of these articles had been infringed, such an infringement would be justifiable because of the margin of appreciation given to the State and because it can be justified for cost and other reasons. I stress that this is only a provisional view but significantly as I explained in paragraph 14 above, Moses J (as he then was) also obviously had very serious misgivings about the claimant's case when giving permission. He wrote that "the claimant is in great difficulty". The significance of this point (with which I respectfully agree) is that if the claimant had a strong case that might have been an additional reason why fairness might have been required exercising case management powers to accede to this application, but that is plainly not the position here even if the new ground of challenge was added.
20. Finally if, which is not the case, I had been in doubt about whether to grant this application to substitute the applicant as the claimant, I would have rejected it because those who drafted the CPR set down narrow conditions for CPR 19.2 (4) for adding a party. It would seem that there would have to be very cogent factors to conclude that there are other reasons why a court should rely on its long-stop case management powers CPR Part 3.1 to make the orders sought. No such factors are present here.

V. Conclusion

21. In those circumstances and in spite of Mr Cragg's submissions, the application to join the applicant must be rejected. It is accepted by Mr Cragg that in that event, he cannot pursue his other applications and I will not comment on them save to say that my initial view is that the applicant would have had some difficulty in establishing that the necessary conditions for a cost protection order were satisfied in this case. Thus all applications are dismissed.