England and Wales High Court (Administrative Court) Decisions

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

		CO/4684/2009, CO/11327/2008 Royal Courts of Justice Strand, London, WC2A 2LL
		14 November 2011

MR JUSTICE SILBER:

I. Introduction.

1. On 6 October 2011, I held a case management conference in which there were applications by Elmabruk Maftah, Abdulbaqi Mohammed Khaled and Abdulbasit Abdulrahim ("the claimants") for (a) orders that a preliminary issue should be tried in their respective claims, (b) disclosure to be ordered; and (c) the appointment of a special advocate. Issue (c) was not pursued, while issue (b) was stood over until the time when judgment is handed down on issue (a). I heard oral submissions solely on issue (a), but both parties wished to submit further material in writing which they duly did and to which I will refer. This judgment relates solely to issue (a).
2. The preliminary issue which all the claimants in the claims before me (other than Mr. Youssef) wished me to order was:-

"Whether the Secretary of State's decision to propose the relevant Claimant for listing by the UNSCR 1267 Committee was tainted by an error of law in that it proceeded on the basis that the relevant criteria for designation required only reasonable suspicion of relevant conduct, rather than evidence sufficient to establish such conduct to at least the civil standard of balance of probability."

3. Mr. Timothy Otty QC, counsel for the claimants accepts that there are only limited circumstances in which a preliminary issue can be ordered, but his case is that the preliminary issue in this case fulfils all the relevant conditions. Mr. Jonathan Swift QC counsel for the Secretary of State for Foreign Affairs ("the Secretary of State") contends that it would not be appropriate to order this or any other preliminary issue as those conditions are not satisfied.

II. The Background

4. Each of the four claimants challenges decisions taken by the Secretary of State when acting in accordance with the United Kingdom's obligations under the UN Charter and, in particular, its obligation to comply with resolutions made by the UN Security Council pursuant to Chapter VII of the UN Charter that established a system of economic sanctions directed to persons determined by a committee of the UN Security Council ("the 1267 Committee") to be members of Al Qaida or of groups associated with Al Qaida. The 1267 Committee is required by the UN Security Council to maintain a list of such persons, known as "the Consolidated List".
5. The claimants challenge decisions by the Secretary of State:-

(a) in the case of the 2^nd – 4^th claimants, to propose that the 1267 Committee add their name to the Consolidated List and to vote for their listing as a member of the 1267 Committee;

(b) in the case of Mr Youssef, as to how the United Kingdom (qua member of the 1267 Committee) should have voted on proposals made by other UN Member States; and

(c) in the case of all the claimants, on whether or not the United Kingdom should have made applications to the 1267 Committee that it should remove one or more names from the Consolidated List.

6. There is also in Youssef's case a challenge on the grounds that the Secretary of State acted unlawfully in failing to make an application to the EU Commission for it to remove Mr. Youssef's name from Annex 1 to Regulation (EC) 881, which is the means by which the EU has given effect (as part of EU law) to the international law obligations arising by reason of the relevant decisions of the UN Security Council. In each case, the challenges are brought by judicial review and they are directed to actions taken by the Secretary of State in the exercise of prerogative/common law powers or his alleged unlawful failures to use such powers.
7. The background to the claims of the claimants seeking the preliminary issue is that they all have ties to Libya with Mr Maftah being a Libyan National while Mr Khaled and Mr Abdulrahim are British Nationals of Libyan origin. They were nominated for listing by the 1267 Committee by the United Kingdom alone and on the basis of their alleged involvement in the Libyan Islamic Fighting Group ("LIFG"). The restrictions on these claimants have been lifted, but they contend that they should never have been listed. Mr Maftah claims that he was listed at the request of the Gaddaffi regime because of his historical opposition to it (see Secretary of State for Foreign and Commonwealth Affairs v Maftah and Khaled [2011] EWCA Civ 350 [7]).
8. The thrust of the challenge of these claimants to the decision of the Secretary of State to nominate them for listing and/or his refusal to delist them is that they were not and that they have never been involved in any form of terrorism. They also submit that in any event the decision to nominate them for designation by the 1267 committee was disproportionate and unnecessary given the ability of the Secretary of State to invoke the provisions of the Terrorism (United Nations Measures) Orders 2006.
9. In response, the Secretary of State submits that as a matter of fact each of the claimants met the criterion for designation when it occurred. The approach to the standard of proof taken by the Secretary of State was explained by Mr Robert Chatterton Dickson the Head of Counter Terrorism Department in the Foreign Office in a witness statement made on 7 August 2009 when he stated that:-

"The standard of proof for designation which has to be met is not set out in the relevant Security Council resolutions, although they make clear that designation and asset freezing are preventative in nature and as they are not reliant upon criminal standards set out under national law, a criminal standard of proof would be inappropriate. The FCO has adopted 'reasonable suspicion', as the most appropriate test in terms of assessing the criteria, drawing upon the judgments of the European Courts in the OMPI I and II cases, and the Court of Appeal in the A, K, M, Q and G v HMT case. The 1267 Committee, in evaluating whether to remove a name from the Consolidated List, may consider whether it has been affirmatively shown that the individual or entity has severed all association with organisations on the consolidated list as decided in paragraph 14 of UNSCR 1735 (2006)."

10. It is this wording which forms the basis of the application for the preliminary issue because the claimants contend that the approach which was then apparently adopted by the Secretary of State was misconceived and flawed because the decision relied on by Mr Dickson which was that specified by the Court of Appeal in A, K, M, Q and G v Her Majesty's Treasury [2009] 3 WLR 25 in its decision of 30 October 2008 which was the law applicable at the time of Mr. Dickson's witness statement of 7 August 2009. As I will explain, an appeal against that decision was allowed by the Supreme Court in Ahmed & others v Her Majesty's Treasury & Others [2010] 2 AC 534, which is a decision which I will consider in paragraph 29ff below.
11. The reasoning of the claimants in seeking an order for the determination of the preliminary issue was explained in a written document served at my suggestion after the oral hearing and it was that:-

"The claimants contend that the Secretary of State's decisions in each of their cases to nominate each of them for listing by the UNSCR 1267 Committee and to support their listing by the Committee were tainted by an error of law in that they proceeded on the basis that the relevant criteria for designation required only reasonable suspicion of relevant conduct, rather than evidence sufficient to establish such conduct to the civil standard of balance of probabilities. The Secretary of State's decisions to nominate the claimants and support their being added to the United Nations Consolidated List were accordingly unlawful and are to be quashed ab initio."

12. Thus, it is said by Mr. Otty QC that it is appropriate that a preliminary issue should be ordered on the basis that if it were to be resolved in the claimants' favour, this would be capable of resolving all the issues in their claim, other than the quantification of damages due to them. So Mr Otty says this is consistent with the overriding objectives in CPR 1.1 in that it would facilitate disposal of the proceedings in a manner which would be proportionate, expeditious and fair.
13. Mr Swift contends that it is not appropriate to order a preliminary issue because the established requirements for such an issue have not been satisfied according to the established principles to which I now turn and which are not in dispute.

III. The Conditions for Ordering a Preliminary Issue

14. In Tilling v Whiteman [1980] AC 1 at 25C, Lord Scarman said:-

"Preliminary points of law are too often treacherous shortcuts. Their price can be, as here, delay, anxiety, and expense."

15. In the same case, Lord Wilberforce (at 17G-H) observed that the Judicial Committee had:-

"often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings."

16. Neuberger J (as he then was) explained in Steele v Steele (2001) CP Rep 106 that:-

"as this case and Tilling v Whiteman show, careful thought should be given to the possible consequences, benefits and disadvantages of having a preliminary issue before the course is adopted."

17. The Court of Appeal have also stressed the need for caution in this area as is shown by the comments of David Steel J at [61] to [66] in McLoughlin v Grovers [2001] EWCA Civ 1743, which were endorsed by Brooke LJ at [44] in Robinson v St Helens [2002] EWCA Civ 1099.
18. More recently, the House of Lords gave further guidance on the limited circumstances in which it would be appropriate to order the trial of preliminary issues in SCA Packaging Ltd v Boyle [2009] UKHL 37. Although the statements were made when considering a preliminary issue set down for determination by the Employment Tribunal, it is common ground that their comments are of general application and that they would be applicable in the present case. Lord Hope of Craighead observed that:-

"6. The issues which the Vice-President identified were, of course, preliminary issues. There would have been no need for the tribunal to address the question whether Mrs Boyle had been discriminated against if she was not a disabled person during the relevant period. But it will have been obvious from the outset that these were issues of real substance which were likely to take some time to determine.

...

9. It has often been said that the power that tribunals have to deal with issues separately at a preliminary hearing should be exercised with caution and resorted to only sparingly. This is in keeping with the overriding aim of the tribunal system. It was set up to take issues away from the ordinary courts so that they could be dealt with by a specialist tribunal as quickly and simply as possible. As Lord Scarman said in Tilling v Whiteman [1980] AC 1, 25, 5

preliminary points of law are too often treacherous shortcuts. Even more so where the points to be decided are a mixture of fact and law. That the power to hold a pre-hearing exists is not in doubt... There are, however, dangers in taking what looks at first sight to be a short cut but turns out to be productive of more delay and costs than if the dispute had been tried in its entirety... The essential criterion for deciding whether or not to hold a pre-hearing is whether, as it was put by Lindsay J in O'Shea Construction Ltd v Bassi [1998] ICR 1130, 1140, there is a succinct, knockout point which is capable of being decided after only a relatively short hearing. This is unlikely to be the case where a preliminary issue cannot be entirely divorced from the merits of the case, or the issue will require a substantial body of evidence. In such a case it is preferable that there should be only one hearing to determine all the matters in dispute."

19. In the same case, similar comments are to be found in the speeches of Baroness Hale at [72] and Lord Neuberger at [82]. Lord Brown at [79] stated that unless there was a "probability" that a preliminary issue as to whether the complainant was disabled or not would be "determinative one way or another of the entire dispute", it was highly unlikely to be justifiable to set down the issue to be determined on a preliminary basis.
20. The position that emerges is that before ordering a preliminary issue, a court should scrutinise the material with great care so as to consider first whether the resolution of the preliminary issue would be determinative of the dispute, and second if it would be, whether in Lord Hope's words in SCA Packaging Ltd v Boyle "there is a succinct, knockout point which is capable of being decided after only a relatively short hearing". There is also a helpful check list in the judgement in the Steele case which I will consider in paragraph 38 below.

IV. Discussion

21. It is convenient at the outset to deal with the submissions made by Mr Swift that it would not be appropriate to order a preliminary issue in the case of Abdulrahim because it had been listed for a rolled-up permission-substantive hearing, because in his words there "is a substantial issue regarding the question of delay". To my mind, this should not prevent a preliminary issue being ordered if all the other requirements for a preliminary issue were satisfied for the other claimants because there is no need for the issue of delay to be treated as the sole pre-condition for determining whether permission should be granted. The preliminary issue could also serve that purpose.
22. I have come to the conclusion that it would not be appropriate to order a preliminary issue in this case for three reasons, which I will set out in no particular order of importance and which individually and cumulatively lead me to that conclusion. I will also mention one provisional reason, which might also support that conclusion.
23. A first reason why the proposed preliminary issue should not be ordered is that in Lord Brown's words in SCA Packaging Ltd v Boyle there is not a "probability" that the preliminary issue would be with emphasis added "determinative one way or another of the entire dispute" or would constitute in Lord Hope's words "a succinct, knockout point". If the preliminary issue is ordered and even if the claimants are successful on that preliminary issue, there would still be a number of serious consequential issues to be tried, such as first whether each claimant was entitled to a declaration that he never satisfied the criteria for inclusion in the Consolidated List; second whether each claimant was entitled to a declaration that the Secretary of State's delay in seeking the delisting was unlawful; third whether each claimant's rights under the Human Rights Act 1998 has been breached; and finally whether each claimant was entitled to damages and if so, in what sum.
24. If, on the other hand, the Secretary of State was successful on the preliminary issue, the Court would then have to determine first whether each claimant was entitled to a declaration that the Secretary of State's delay in seeking the delisting was unlawful; second whether each claimant's rights under the Human Rights Act 1998 has been breached; and finally whether each claimant was entitled to damages and if so, in what sum. So irrespective of the outcome of the proposed preliminary issue, there would still have to be further hearings but the hearing of the preliminary issue would have delayed matters and increased costs.
25. A second reason why resolution of the proposed preliminary issue would not be determinative of the issue on liability is because even if, as the claimants contend to be the position, the Secretary of State erred in applying the criterion of "reasonable suspicion" of the relevant conduct as the test for deciding whether a particular claimant should be listed by the 1267 Committee, that would not be determinative even of the issue as to whether the Secretary of State had acted wrongfully let alone of in Lord Brown's words "the entire dispute". The reason for that conclusion is that the case for the Secretary of State is that even if the test which should have been applied by the Secretary of State was not that of "reasonable suspicion" but that of the balance of probabilities or of reasonable belief on his part, then he would have been entitled to reach the same decision as the one under challenge. In other words, the resolution of the preliminary issue would not be determinative of any issue in this case because even if the claimants were successful, the Court would at its next hearing have to resolve the next issue which is whether the Secretary of State's actions can be justified on the basis of the test.
26. It is interesting to note that in the case of control orders after the House of Lords had decided that the Secretary of State for Home Department had not given adequate disclosure in a number of control order cases, they were remitted for further consideration in applying the principles which it had laid down (Secretary of State for Home Department v AF (No 3) [2009] UKHL 28). It became clear when the case was being considered on remission that the Secretary of State would not have applied for the control orders if he or she had been obliged to give the disclosure stipulated by the House of Lords and so the orders were revoked (see AN v Secretary of State for the Home Department [2010] EWCA Civ 869). So in these present cases if the Secretary of State had applied the wrong test of "reasonable suspicion of wrongful conduct", there would have to be consideration of what the position would have been if the correct test had been applied.
27. This exercise would probably be very time-consuming because each and every decision would have to be the subject of detailed scrutiny. There might well also be complex issues of Public Interest Immunity that would have to be resolved. In any event, what is clear is that much evidence would have to be adduced first in relation to what was known at different times; second how that was or would have been appraised by the appropriate decision maker; and (if the incorrect test had been applied) third how it would have been appraised by the decision maker if the correct test had been applied. These exercises would all take substantial periods of time and it would not meet what Lord Hope described in SCA Packaging Ltd v Boyle as being -

"... The essential criterion for deciding whether or not to hold a pre-hearing is whether, as it was put by Lindsay J in O'Shea Construction Ltd v Bassi [1998] ICR 1130, 1140, there is a succinct, knockout point which is capable of being decided after only a relatively short hearing".

28. A third reason why a preliminary issue is not appropriate is that it is not sought in Mr. Youssef's case so that his claim would have to be disposed of separately at a full hearing and this would mean that there would have to be two separate hearings which would be wasteful in terms of costs to the parties and in judicial time when compared with the alternative of not having a preliminary issue when there would be one consolidated hearing.
29. A fourth reason why a preliminary issue might (and I stress might) not be appropriate is that my provisional view is that any consideration of the ratio in the decision of the Supreme Court in Ahmed & others v Her Majesty's Treasury & Others (supra) and its application to the present case would take a very substantial period of time and would not be in Lord Hope's words "a succinct, knockout point which is capable of being decided after only a relatively short hearing". I put this reason forward with some diffidence, because this is a point which occurred to me when I received the Secretary of State's written response to the claimants' reasoning in seeking the order for the determination of the preliminary issue which I set out in paragraph 11 above and which was served after the oral hearing. The claimants' counsel have not responded to this point and it seemed to me to be unnecessary to trouble them to do so because irrespective of their views, I would have refused to order a preliminary issue for the reasons set out above.
30. There are according to Mr. Swift substantial arguments open to the defendant, which would show that there is not in this case "a succinct, knockout point which is capable of being decided after only a relatively short hearing", that the reasonable suspicion test was the appropriate test in the light of the decision of the Supreme Court in Ahmed. It is correct that the test which had been set out in the witness statement of Mr Chatterton Dixon and which I quoted in paragraph 9 above accords with the decision of the Court of Appeal in the Ahmed case, which had been reversed. Nevertheless, the case for the Secretary of State is that it is by no means clear as to whether in that case the appropriate standard of proof was the civil standard, namely the balance of probabilities. In the Ahmed case, one of the issues before the Supreme Court was whether HM Treasury had the power pursuant to section 1(1) of the United Nations Act 1946 to make the Terrorism Order an executive order in council.
31. The Terrorism Order however was not made to give effect to UN Security Council Resolution 1267 or to any of the successor resolutions to it, but it was made to give effect to UN Security Council Resolution 1373. Both Lord Hope JSC and Lord Rodger JSC said that the UN Security Council Resolution 1373 [2001] did not address the standard of proof (see [58] and [168]). On this issue, the majority of judgments were those of Lord Hope VPSC with whom Lord Walker JSC and Lady Hale JSC agreed and of Lord Rodger JSC with whom Lady Hale also agreed. So Mr. Swift contends that the majority concluded that it was left to member states to decide what threshold they wished to apply.
32. His case is that the majority did not suggest the United Kingdom could not lawfully adopt a reasonable suspicion criterion for implementation on the basis of section 1 of the United Nations Act 1946 of the obligation arising under UN Security Council Resolution 1373. Mr. Swift contends that the Terrorism Order was ultra vires not because the UN Security Council Resolution 1373 required the United Kingdom to adopt a civil standard rather than reasonable suspicion, but because the Security Council Resolution did not specify the standard. The conclusion of the Supreme Court was that in such circumstances, the standard should have been implemented by legislation rather than by executive order pursuant to section 1 of the 1946 Act.
33. Mr. Swift notes that only one of the members of the Supreme Court Lord Mance JSC suggested that UN SCR 1373 [2001] required the determination to be undertaken applying the balance of probabilities. Lord Phillips of Worth Matravers PSC advocated a higher standard while Lord Brown JSC considered the test was reasonable grounds for believing [199] and he decided that the Terrorism Order was unlawful because the Treasury had an insufficient mandate to make it [201].
34. Thus the case for Secretary of State is first that the majority of the Supreme Court left it to Parliament to consider whether to adopt the reasonable suspicion test and second that in Ahmed, the issue to be resolved related to the scope of the power to make an order pursuant to section 1 of the 1946 Act. This issue according to Mr. Swift is different from the present case where the issue is the exercise by the Secretary of State of common law/prerogative powers and it is accepted that in exercising such powers first the Secretary of State must act lawfully at common law and not irrationally and therefore in accordance with the Wednesbury standards and second that he is also bound to act in accordance with the obligations under section 6 of the Human Rights Act 1998.
35. The case for the Secretary of State is that neither the Human Rights Act nor the Wednesbury principle shows any applicable standard of proof. Indeed, his case is that the correct approach is that put forward by the Secretary of State which is to consider the position in the round namely by reference to the information available to the Secretary of State by reference to the lawful consideration that the United Kingdom should act consistently with United Nations Charter obligations and then ask if the decisions were lawful at common law.
36. An additional factor relied on by the Secretary of State apart from the fact that Ahmed does not assist the claimants is that, even if the reasonable suspicion test was not the appropriate test, it would not follow that the Secretary of State when making determinations in the exercise of his common law prerogative powers was obliged to adopt the same approach or was irrational.
37. I am unable to decide if Mr. Swift's case is correct in the absence of detailed submissions, but my provisional view is that his reasoning shows that this is a complex matter which in Lord Hope's words is not "a succinct, knockout point which is capable of being decided after only a relatively short hearing". I should stress that this factor has not led to me rejecting the application for a preliminary issue, but it could constitute an additional reason for doing it.
38. In the Steele case (supra), Neuberger J (as he then was) set out a series of questions which a Court should ask itself in deciding whether to order a preliminary issue. They provide further tests to decide if a preliminary issue should be ordered and Mr. Swift encouraged me to consider those tests. I set out those tests below in italics followed by my responses in relation to the present case, which are:-

(a) First, would the determination of the preliminary issue dispose of the case or at least one aspect of it? In the present case, irrespective of the outcome of the preliminary issue, there would still be numerous issues to resolve as I explained in paragraphs 23 to 28 above;

(b) Second, would the determination of the preliminary issue significantly cut down the cost and time involved in pre-trial preparation or in connection the trial itself? Here, substantial evidence would still have to be led, regardless of which way the preliminary issue was determined and the inevitable need for two hearings, rather than one hearing would lead to additional costs and delay;

(c) Third, where as here the preliminary issue was one partially of law, the Court should ask itself how much effort would be involved in identifying the relevant facts. Here the effort and consequent cost would be considerable in dealing with, for example the issues set out in paragraph 29ff;

(d) Fourth, if the preliminary issue was one of law to what extent was it to be determined on agreed facts? It is by no means certain that there would be agreed facts;

(e) Fifth, where the facts were not agreed the Court should ask itself to what extent that impinged on the value of a preliminary issue. Here, the determination of the claim may depend on detailed assessment of the evidence which could only be achieved at trial.

(f) Sixth, would determination of the preliminary issue unreasonably fetter the parties or the Court in achieving a just result? It would delay the final resolution of this case irrespective of the outcome of the preliminary issue and increase costs;

(g) Seventh, was there a risk of the determination of the preliminary issue increasing costs and/or delaying the trial? If the determination could prompt settlement that was a factor to weigh against this risk; here, the prospect of settlement appears remote. Further, the points of law raised here might well be suitable for determination by the Court of Appeal which would result in further delay and costs;

(h) Eighth, the court should ask itself to what extent the determination of the preliminary issue may be irrelevant? It might be irrelevant in the sense that irrespective of the outcome of the preliminary issue, the Secretary of State could succeed by stating that whatever the correct test was for selecting candidates for listing by the UNSCR 1267 Committee, he could satisfy that test;

(i) Ninth, was there a risk that the determination of the preliminary issue could lead to an application for the pleadings to be amended so as to avoid the consequences of the determination? This may possibly be relevant here; and

(j) Tenth, taking into account the previous points, would it be just to order a preliminary issue [as it would lead to an additional hearing with the inevitable increase in costs and further delay]? There is bound to be a further hearing irrespective of the outcome of the preliminary issue as explined in paragraphs 24 to 28 above and this would lead to increased costs and delay for the parties without any offsetting benefit.

39. This exercise provides support for my conclusion that I should not order the preliminary issue sought by Mr. Otty.

V. Conclusions

40. The application for a preliminary issue must be rejected. The parties will recall that the order made at the end of the oral hearing provided that:-

"2. In respect of the application by all Claimants for further disclosure in their claims:

(a) The Defendants shall if and to the extent required in accordance with their duty of candour, give disclosure of material that has been withheld from open disclosure on grounds of its sensitivity or claim public interest immunity in respect of the same by (as a provisional date) 30 November 2011;

(b) Following the provision of a draft judgment on the Second to Fourth Claimants' application for a preliminary issue, and at least 3 clear days before the date set for that judgment formally to be handed down, the Defendant shall serve a witness statement setting out:

(i) The steps taken to that point in order to comply with 2(a); and

(ii) The further time (if any) required for disclosure or any claims required for public interest immunity and the reasons for that additional time being necessary (including by reference to the volume or complexity of material under review).

The Defendant shall also provide proposed directions for the further progression of each claim.

3. The parties shall endeavour to agree further directions in respect of the progression of the claims. A hearing for hand down of the judgment on the application for a preliminary issue and to resolve any outstanding issues as to directions shall be listed to take place no sooner than 7 days after the provision of the draft judgment referred to in 2(b) (if necessary at 9.30 am)."