England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 July 2009

MR JUSTICE SILBER:

I Introduction

1. This is the judgment of the Court. Mr Ibrahim Gattan Hassan ("the applicant") applied on about 24 March 2009 to be added as a seventh claimant in this case and for his claim to be heard at the substantive hearing of this application which was due to start on 22 April 2009. The applicant's fallback position was that if he was unable to persuade us that he should be joined and that he could participate in the present proceedings, he should merely be joined as a claimant but that his claim should be heard later. We heard the application on the first day of the trial when we rejected the application for the applicant to be joined in the present proceedings and we now give our reasons for this decision.
2. By way of background, we should explain that the present six claimants were among a number of Iraqi citizens who were captured or who had a family member who was allegedly captured by British troops near Majar Al Kabir in Iraq on 14 May 2004 during or after an episode that has become known as "the battle of Danny Boy". It is the claimants' case that at least one of those captured was killed at a British Camp called Camp Abu Naji ("the camp") while the others were tortured or ill-treated by British troops at the camp between 14 and 15 May 2004 and were also unlawfully detained. It is also contended that there has been no effective investigation in to what happened to them while these events occurred.
3. The case of the claimants is that this conduct by the military personnel for whom the Secretary of State for Defence is responsible constitutes a substantive and procedural breach of the claimants' rights under articles 2, 3 and 5 of the European Convention of Human Rights ("the ECHR"). The nephew of the first claimant was one of those killed on 14 or 15 May 2004. A further nine individuals who were captured by British troops on 14 May 2004 were detained for several months, and this group included the second to sixth claimants. It is the case of these claimants that, in breach of their rights under articles 3 and 5 of the ECHR, their detention was unlawful and that they were mistreated during their detention.
4. The factual background to the application made by the applicant to be joined as a claimant is that he is an Iraqi civilian, who was one of those captured by the British forces following the battle of Danny Boy on 14 May 2004 and that he like the others was also taken to the camp. His case is that he was working on his family's farm at the time of the incident and that he was caught in cross-fire between British soldiers and insurgents with the result that he was seriously injured when a bullet entered his right leg just below his knee and then exited his leg just below the knee. The applicant also sustained shrapnel wounds to his leg and foot.
5. The applicant was then taken to the camp on 14 May 2004 before being transferred to the United Kingdom Army's Divisional Temporary Detention Facility ("DTDF") at Shaibah on 15 May 2004, together with the second to sixth claimants and another three Iraqis. He states that while he was at the camp, he was examined by medical staff and that notwithstanding his serious injuries, he received no or next to no medical treatment. He also contends that he was mistreated at the camp in that he was hit and slapped by British soldiers.
6. After his arrival at the DTDF on 15 May 2004, the applicant contends that he was placed in a cell with some of the other men who had been captured following the Danny Boy incident including some of the claimants in this case. They realised the seriousness of the applicant's injuries and they duly sought assistance for him from British personnel. The applicant was then taken to the Accident and Emergency ward of the British Medical Field Hospital at Shaibah on 16 May 2004. On the following day, he had an operation to remove the shrapnel from his knee and foot while on 20 May 2004 he had an operation to close his knee and foot wounds. He was discharged from the hospital at Shaibah on 27 May 2004 after having spent eleven days there.

II The Issues

7. It was submitted by Mr Rabinder Singh QC on behalf of the applicant and the existing claimants first that the acts of mistreatment committed during this period constituted breaches of the applicant's article 3 rights on the same basis as the claims of the existing second to sixth claimants, and second that the applicant was seeking the same remedy as they were pursuing. Mr Singh also contended that the defendant's failure to treat the applicant for his injuries until after his arrival at the DTDF, constituted a distinct and further breach of the applicant's article 3 rights.
8. Mr Singh relied on the decision of the Grand Chamber of the European Court of Human Rights in Paladi v Moldova (Application number 39806/05) given on 10 March 2009, which concluded that a failure to provide adequate treatment to an individual could constitute a breach of article 3. It was stressed on behalf of the applicant that he was suffering from very serious injuries when he arrived at the camp and that this required two operations and a stay of eleven days in hospital to treat them.
9. The applicant's case was that while he was at the camp, the defendant's medical records showed that the only steps taken by his captors in relation to his injuries were to "clean and dress" the gunshot wound. It was also said on behalf of the applicant that despite his injuries, throughout his time at the camp, he was mistreated in breach of his article 3 rights as first he was handcuffed, second he was made to sit for the night at what he believed was a toilet cubicle, third he was dragged on two occasions to be questioned and fourth he was hit by soldiers.
10. Mr Clive Lewis QC on behalf of the defendant resisted the application to join the applicant in the present claim on the grounds that first the requisite written consent of the applicant to be joined as claimant had not been obtained, and second that this claim was out of time without any adequate explanation for the delay, and that crucially that the Secretary of State would be prejudiced if the applicant were to be joined as a claimant in the proceedings.
11. Mr Singh sought to meet these points by relying strongly first on the merits of the applicant's case and second on the fact that the applicant's case raised points of significant general public importance relating to the way in which prisoners are treated. We are and were prepared to assume in the applicant's favour, without deciding the issue, that the applicant's claim had real merits and that it also raised issues of significant public importance.

III Failure to Obtain Written Consent of the Applicant

12. Mr Lewis contends that the application to join the applicant in the present proceedings is misconceived as the application does not comply with the provisions of CPR 19.4 (4) which provide that nobody may be added as a claimant "unless (a) he is given his consent in writing; and (b) that consent has been filed with the court". No such consent was produced nor filed with the court when the application was heard on 22 April 2009. It is noteworthy that the defendant made it clear at the first hearing of the application to join the applicant which was on 9 April 2009 that it would challenge the application to add the applicant on the basis of non–compliance with CPR 19.4 (4).
13. Nevertheless by the time when we dealt with the application on 22 April 2009, surprisingly no evidence had been adduced by or on behalf of the applicant to explain why the signed consent still had not been produced. Its absence has meant that this court has no jurisdiction to hear the application irrespective of the merits or the public importance of the applicant's claim.
14. Furthermore, paragraph 2.1 of the Part 19 Practice Direction requires that:-

"where an application is made to the court to add... a new party to the proceedings as claimant, the party applying must file... (iii) the signed, written consent of the new claimant to be so added or substituted".

15. No argument or evidence was put forward by the applicant to explain why these provisions had not been complied with, nor why these provisions could or should be disregarded. Again, neither the assumed significant public importance nor the assumed merits of the applicant's case provided an answer to the failure to comply with these provisions. That in our view is fatal to the applicant's claim to be joined in the present proceedings and we will therefore deal with the remainder of the submissions more briefly than we would have done if they had been of crucial importance in these proceedings.

IV The Limitation Issue

16. The starting points for considering when the present application of the applicant should have been made are two relevant provisions. First, CPR 54.5(1) provides that a claim for judicial review "must be filed – (a) promptly; and (b) no later than 3 months after the grounds which make the claim first arose".
17. Second, by section 7(5) of the Human Rights Act 1998 ("HRA"), claims such as the present one:-

"must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question".

18. Clearly the present application by the applicant which related to events which occurred almost five years ago was made well outside the periods prescribed in the CPR and in the HRA, but Mr Singh relies upon the powers of this court to grant an extension of time under CPR Part 3.1(2) (a) as well as the power under section 7(5) (b) of the HRA for this court to prescribe such longer period for bringing a claim as it "considers equitable having regard to the circumstances".
19. As we have explained, Mr Lewis submitted that no extension should be granted to extend the prescribed periods in the light of first the prejudice which the defendant would suffer if the application to be joined was granted, and second the history of this case and in particular the numerous opportunities which the applicant had to apply to be joined. No good reason was put forward to explain why the applicant did not avail himself of these opportunities and only applied to be joined very shortly before the start of hearing of this application.
20. Starting with the allegations of prejudice, unlike any of the existing claimants the applicant based his claim to some extent on a lack of medical treatment. We accepted the undisputed evidence of Ms Anna McLeod (who is a legal adviser in the Ministry of Defence) in her witness statement that prior to receipt of the present application by the applicant, it had been unnecessary for the defendant to obtain any evidence dealing with the allegation of a failure to treat any detainee let alone a failure to treat the applicant.
21. Ms McLeod explained in her witness statement that the type of evidence which the Secretary of State would have had to obtain to meet the applicant's case would have been very different from the evidence which had been obtained in respect of the existing claims by the existing claimants. There are, according to Ms McLeod, three areas which the Secretary of State would have wished to investigate in order to answer the claim of the applicant.
22. The first area of inquiry would have been to contact individuals who had come into direct contact with the applicant on the battlefield up to and including the time of his transfer to the British Medical Field Hospital. This, according to Ms McLeod, entailed reviewing voluminous documentation as well as contacting the twenty-seven individuals who had been identified as being sources of evidence relating to the applicant's case. By Friday 17 April 2009, the Secretary of State had confirmed accurate contact details for each of those individuals, except for one individual namely Corporal Collins.
23. This work according to Ms McLeod had taken a great deal of time, and a further difficulty was that it had transpired that a number of the individuals had left the armed forces, while some of those who remained were deployed in operations in Afghanistan and Iraq, while others had been posted to different locations. Not surprisingly, Ms McLeod stated that, as the events in question occurred almost five years ago, it would be very important to provide potential witnesses with the relevant documentation so that they could then refresh their memories. By the time of the hearing of the present application, thirteen witnesses had been contacted and they had provided some very limited information, while fourteen other individuals still remained to be contacted. The remaining task of obtaining detailed witness statements from them was bound take a great deal of time and not surprisingly the Secretary of State was not ready to deal with the applicant's claim during the hearing of the existing claim.
24. The second area that remained to be investigated by the Secretary of State's legal team at the time of the present application in order to answer the applicant's claim were the relevant policy documents relating to the medical treatment of detainees that were in existence at the time of the events in question. Ms McLeod pointed out that, although some documents had been discovered and they filled 70 ring binders, there was no certainty that this constituted a comprehensive list.
25. The third area that still remained to be investigated at the time of the hearing of the application related to the identifying of an appropriate medical expert, who could carry out a detailed analysis of the applicant's medical reports in order to determine the exact nature of the injuries incurred and the procedures undertaken at the hospital. At the time of hearing the application, it was anticipated that there would be difficulties in obtaining the relevant x-rays because even if they still existed they were still likely to be in Iraq. Ms McLeod explained that once they had been obtained it would then still be necessary to obtain expert evidence, but it had not been possible to take any of these steps in the time available between the making of the application and the hearing of it.
26. We had no hesitation in accepting the evidence of Ms Macleod and in concluding that there would have been great prejudice to the defendant if this application had been acceded to at this late stage. This conclusion precluded us from granting the extensions to the statutory time periods sought by the applicant, even after taking account of Mr Singh's submissions, and in particular the assumed significant public importance and the assumed merits of the applicant's case.
27. If, which is not the case, we had been in any doubt on this issue we would have resolved it in favour of the defendant for two other reasons. First, the applicant has failed to put forward any cogent reason to justify the delay in seeking to be joined. Second, the applicant had many opportunities to apply to be joined earlier in the proceedings but no warning or intimation of any kind was given that he might wish to be joined.
28. In reaching the conclusion that the application for the applicant to be joined had to be dismissed, we did not overlook Mr Singh's submission that we could permit the application for him to be joined, but then adjourn consideration of the substantive merits of the claim. The stark fact is that the application could not succeed because the written consent of the applicant was needed for the reasons set out in paragraphs 12 to 15 above, but was not provided. In addition, it is clearly imperative that all the claims relating to the Danny Boy Incident should be resolved at one hearing and indeed this approach is required by the overriding objectives of the CPR which require cases to be dealt with proportionately, expeditiously and appropriately while taking account of the needs of other cases (CPR Part 1 1.1). For the applicant's case to be dealt with substantively on another occasion would be inconsistent with those overriding objectives.
29. In any event, Mr Singh's fall-back position meant that there would have to be a long delay before the present members of the court could be reassembled because of their commitments. Furthermore, there is a realistic possibility that the defendant would still be prejudiced in contesting the applicant's claim for the reasons outlined by Ms Macleod and to which we referred in paragraphs 20 to 26 above.
30. For all those reasons, the application had to be refused.