England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/11/2012

Lord Justice Richards :

1. This is the judgment of the court giving reasons for the decision we announced in open court on 13 November 2012 at the conclusion of the hearing of the claimant's applications for permission to re-amend the claim and to rely on further evidence, and for an order for production of documents by a non-party.
2. The applications relate to a claim for judicial review by which the claimant challenges the decision taken by the defendant Secretary of State on 1 April 2010 to create a Marine Protected Area ("the MPA"), with a total prohibition on commercial fishing, around the British Indian Ocean Territory ("the BIOT"). The claim is the latest in a series of cases arising out of the removal of the Chagos Islanders from their homes and their exclusion from the BIOT. The general background is described in the judgment of the House of Lords in R (Bancoult) v SS for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453.
3. Prior to the re-amendment sought, the claim was based on three grounds: (1) that the decision was flawed by an improper motive, namely an intention to create an effective long-term way to prevent Chagossians and their descendants from being resettled in the BIOT; (2) that it was flawed by the failure to reveal, as part of the consultation that preceded it, that the Secretary of State's own consultants had advised that resettlement of the population was feasible; (3) that it was flawed by the failure to disclose relevant environmental information in the course of the consultation. Ground (2) relates to a feasibility study commissioned in 2000 by the Secretary of State to assess the feasibility of a full or partial repopulation of the BIOT.
4. The application to re-amend sought to add two further grounds: (4) that the decision was flawed by "the failure to disclose that the MPA proposal, insofar as it prohibited all fishing, would adversely affect the traditional and/or historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands"; and (5) that the decision "was made in breach of the obligations imposed on the United Kingdom under Article 198 of the Treaty on the Functioning of the European Union requiring the UK to promote, not destroy, the economic and social development of the territory of the BIOT and the interests and prosperity of the Chagossians (the inhabitants of the Chagos Islands on accession to the EU) 'in order to lead them to the economic, social and cultural developments to which they aspire'".
5. The claimant also sought permission to rely on further evidence, some of it associated with the existing grounds, some with proposed ground (4) and some with the issue of relief, and to make a number of re-amendments to the statement of facts and grounds so as to incorporate points from that further evidence.
6. There was a separate application by the claimant under CPR 31.17 for production of certain documents held by a non-party, namely one of the consultants involved in Phase 2B of the feasibility study referred to above.
7. At the time when we heard the applications, the substantive hearing of the judicial review was listed for a 3-day hearing in the week beginning 19 November 2012. In deciding whether to allow the applications we had to take into account the effect that allowing them would have on the listing of the substantive hearing.

Ground (5): Article 198 TFEU

8. It is convenient to deal first with ground (5). Article 198 of the Treaty on the Functioning of the European Union provides for certain overseas countries and territories of Member States to have association with the European Union, for purposes and objectives set out in that article and in Article 199. The claimant's case is that the effect of the provisions is to require the United Kingdom to promote the economic and social development of the territory of the BIOT and the interests and prosperity of the Chagos Islands, and that the MPA decision is in breach of that requirement.
9. Mr Kovats QC's skeleton argument for the Secretary of State advanced the following reasons why the claimant should not be permitted to re-amend to introduce that ground: (1) it has no legal basis and is unarguable, the European Commission having already expressly rejected the claimant's complaint and arguments under this head; (2) the appropriate forum for challenging the Commission's conclusion is the General Court of the European Union, not the Administrative Court of England and Wales; (3) the claimant cannot assert any individual and directly effective right under the relevant provisions, so as to enable him to rely on them to challenge a measure of domestic law; (4) it is an abuse of process to raise the point in the present proceedings, in that the point could have been taken in the Bancoult (No 2) proceedings but there was a considered decision not to take it at that time; and (5) the point is not tied to the MPA decision but amounts to a free-standing claim and is brought out of time. It is fair to say that in his oral development of those reasons, Mr Kovats did not put the case as high as to allege an abuse of process, but he submitted that the point is both substantially and procedurally unarguable and that it could have been taken earlier and should not be allowed to be taken now.
10. We do not find the claimant's case on Article 198 immediately persuasive, but we are alert to the difficulty of making a fully informed assessment on issues of this kind in the course of an interlocutory application and we do not consider the point to be so obviously misconceived as to justify our denying the claimant the opportunity to put it forward as part of his existing challenge to the MPA decision. The same applies to the question whether the claimant is able to assert any relevant rights under the Treaty provisions, which is really part and parcel of the substantive argument. We do not accept that the claimant should be limited to a challenge to the Commission's decision (as and when the Commission makes a final determination amenable to challenge before the court in Luxembourg). The claimant relies on the point as a specific ground of challenge to the MPA decision impugned in these proceedings, for which the Administrative Court is plainly the appropriate forum. Further, the subject-matter of the present proceedings is different from that of the previous court proceedings, and the decision not to raise the point in the previous proceedings does not make it an abuse of process to raise it in the present context, nor does it otherwise provide a good ground of objection to the point being raised now. Finally, the point is not raised as a free-standing claim so as to engage the judicial review time limit. It is certainly raised late in the present proceedings, but it is clear from the Secretary of State's skeleton argument that the Secretary of State is in a position to deal with it, and it does not appear to us that the Secretary of State would be caused any prejudice by the point being advanced now. The parties were agreed, moreover, that if this ground were introduced it would not require an adjournment of the substantive hearing fixed for the following week.
11. For all those reasons we were satisfied that permission should be granted for the claimant to re-amend to introduce ground (5).

Ground (4): fishing rights

12. Ground (4) has some relationship to existing grounds (2) and (3), in that it raises a further alleged defect in the consultation preceding the MPA decision. The impact of the MPA on the "traditional fishing rights" of the Chagossians was touched on in the original claim but did not form a major feature of the argument. By ground (4) the claimant seeks to make very much more of the issue, on the basis of documents discovered in April 2012.
13. At the heart of the matter is an undertaking allegedly given by HMG to the Government of Mauritius in 1965, the effect of which is said to have been to confer rights on Mauritian citizens to fish in BIOT waters, thus explaining why Mauritian registered vessels were in practice given fishing licences free of charge over the years, and raising the question whether HMG was free to revoke those licences. It is further said that Chagossians benefited from these arrangements as crew members of Mauritius registered vessels and because they themselves became Mauritian citizens in 1968. Essentially on this basis it is alleged that Chagossians had "traditional or historical rights to fish in BIOT waters" and that the consultation process was flawed by the failure to disclose the 1965 undertaking and the adverse effect the MPA would have on those rights.
14. Mr Kovats advanced a number of reasons why the claimant should not be permitted to introduce this ground. First, he submitted that if any undertaking was given to the Government of Mauritius as alleged by the claimant, any rights deriving from that undertaking would exist only on the plane of public international law; and that questions as to whether any such undertaking was in fact given and whether it is binding on the United Kingdom, and as to its content, interpretation and application, are all outside the jurisdiction of the English court or are non-justiciable. Indeed, Mauritius has brought arbitral proceedings against the United Kingdom under the United Nations Convention on the Law of the Sea 1982 concerning the establishment of an MPA around the BIOT, which includes claims based on Mauritius's alleged fishing rights. The second and related submission was that the claimant does not have standing to seek to have an English court determine or enforce any alleged fishing rights that Mauritius may have in international law.
15. Mr Pleming QC sought to meet those arguments by saying that the claimant does not contend in these proceedings that the traditional or historical rights relied on are legally enforceable, so that the question whether there are enforceable rights under international law would not arise for decision. The point made by the claimant is simply that there is credible evidence that HMG gave an undertaking to the Government of Mauritius which has subsequently been evidenced in preferential treatment for Mauritius registered fishing vessels, and that this was an important part of the background yet was not put before consultees, who were in consequence misled.
16. Despite Mr Pleming's stance, we are far from confident that issues of international law could be excluded from consideration of this issue. As regards the claimant's own case, it is not clear what the traditional or historical "rights" of the Chagossians are said to be if they are not rights under international law. It is also possible that, despite the threshold objections now raised, the Secretary of State will wish to deploy arguments of international law in meeting the contention that the alleged undertaking was an important point which should have been mentioned in the consultation. We do not think, however, that these are good reasons for preventing the claimant from advancing the argument he wishes to advance in relation to the alleged flaw in the consultation. If international law issues are raised, the court will have to determine at the substantive hearing to what extent they can properly be adjudicated upon and what their implications are for the claim as advanced. We do not accept the submission by Mr Kovats that insuperable problems would arise.
17. Mr Kovats put forward two further reasons why the claimant should not be allowed to introduce ground (4). One was that fishing rights were in fact considered in the consultation process in any event. The other was that arguments about traditional or historical fishing rights are irrelevant to the MPA, and that any challenge relying on such rights should have been brought not against the MPA but against the regulations relating to the licensing of fishing, or to the refusal of a licence under those regulations. We see no real force in either objection. The question whether fishing rights were relevant to the consultation on the MPA and, if so, whether they were adequately addressed in the consultation are matters of dispute which are appropriate for resolution at the substantive hearing.
18. A further and important consideration was that if the claimant were granted permission to re-amend to introduce ground (4), the substantive hearing fixed for the week commencing 19 November would have to be vacated. The evidence for the Secretary of State was that the work required to react and respond to the ground (including review of the need for further disclosure) would take at least 4 working weeks, and that the time estimate for the hearing itself would be extended by a full day. Mr Pleming objected to an adjournment but we were satisfied that fairness to the Secretary of State would require it.
19. Although the re-amendment would have that highly undesirable consequence, we concluded on balance that the claimant should be permitted to make it. In this sensitive case, where the claimant also complains (whether rightly or wrongly) of difficulties in obtaining disclosure of documents over the years, he should not be prevented from advancing an arguable issue which, at least on his case, has become apparent only by reason of documents discovered within the last six months or so. Both sides prayed in aid the overriding objective of enabling the court to deal with cases justly. In our view it provided greater assistance to the claimant than to the Secretary of State on this application.

Other points on re-amendment

20. In addition to the two new grounds considered above, the application to re-amend covered some more detailed points in the statement of facts and grounds. To a very large extent those points reflected the further evidence sought to be relied on, so that they would stand or fall with the rulings we made in relation to that further evidence. We left it to counsel to seek to agree which passages in the draft re-amended statement of facts and grounds should remain, and which should be deleted, in the light of those rulings, to which we now turn.

Further evidence

21. The application to rely on further evidence falls into two parts. First, in support of ground (4), fishing rights, the claimant sought to rely on the first witness statement of Mr Richard Dunne, dated 8 October 2012. That witness statement includes material relating to the alleged undertaking to the Government of Mauritius, aspects of BIOT fishery legislation over time, the consultation process, and recent correspondence with the Secretary of State, and makes various points in line with the legal case advanced on behalf of the claimant. It followed from our decision in relation to ground (4) that the claimant should be permitted to rely on this evidence. That was effectively common ground.
22. Secondly, a further witness statement of Mr Dunne (described as his second statement though dated 5 October 2012, three days before the date of the first statement) exhibits a large number of further documents upon which the claimant sought to rely. Most of them are copies of disclosed documents or correspondence in respect of which there is no issue. Two documents, however, are different in character and call for specific comment.
23. The first is a document entitled "Chagos Islands: Analysis Note on the Resettlement Studies", described as an evolving document which was commenced in 2009 by Mr Gifford, one of the solicitors with conduct of the claimant's case, and since 2012 co-authored by Mr Gifford and Mr Dunne. It analyses the available material relating to the resettlement feasibility study which is relevant in particular to ground (2); and it has been updated to take account of recent disclosure. Mr Pleming made clear that he wished to use the document as an aid to presentation of the factual story at the substantive hearing. He said that it would be of enormous assistance to the efficient presentation of the case and would shorten the time needed for oral submissions. On that basis there was no objection by Mr Kovats to its use. We decided that the claimant should be permitted to rely on it for that purpose.
24. The other document that calls for specific comment is a review by Associate Professor Paul Kench, dated 5 October 2012, of Phase 2B of the resettlement feasibility study (to which may be added the separately exhibited curriculum vitae of Associate Professor Kench). The review challenges the science underlying the feasibility study and opines that the study was flawed. Mr Pleming accepted that the claimant could not rely on this new evidence in support of the substantive challenge to the MPA decision. He said that the reason for placing it before the court would be to demonstrate that a useful purpose would be served by the quashing of the MPA decision if the court concluded that the decision was flawed: in other words, it would go only to the question of relief. Mr Kovats made clear that strong issue is taken with the contents of the Kench review and that if the claimant were permitted to rely on the review the Secretary of State would wish to serve substantial rebuttal evidence.
25. In those circumstances it seemed to us that to permit the claimant to rely on the Kench review at this stage of the proceedings would be of no practical utility but would serve to muddy the waters and to generate unnecessary work and expense. The review will become relevant, if at all, only if the court gets to the point where it is minded to quash the MPA decision but is met by an argument by the Secretary of State that the grant of such relief would serve no useful purpose. If and when that point is reached, a decision can be taken on whether the claimant should then be allowed to deploy the Kench review. We were satisfied, however, that the present application for permission to rely on it should be refused.

Third party disclosure

26. The application for third party disclosure concerns documents of relevance to ground (2). Haskoning UK Ltd (formerly Posford Haskoning Ltd and/or Royal Haskoning Ltd), one of the consultants involved in Phase 2B of the resettlement feasibility study, holds documents relating to that study which the claimant has not been able to obtain from the Secretary of State either by way of disclosure in the present proceedings or through separate Freedom of Information Act proceedings. Haskoning is willing to disclose the documents subject to obtaining the written consent of the Secretary of State, but no such consent has been forthcoming. Specifically, Haskoning has confirmed that it holds a paper draft (February) version of one of the sections of the study, a paper draft (March) version of another section, and paper versions of correspondence between the FCO and Haskoning with regard to review comments and the like.
27. The present application for disclosure, made under s.34 of the Senior Courts Act 1981, is governed by CPR 31.17 which provides, so far as material:

"(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4) An order under this rule must –

(a) specify the documents or classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection."

28. The claimant's arguments in support of the application are set out in a witness statement of Mr Samuel Brown, one of the solicitors with conduct of the claimant's case. The application was not opposed by the Secretary of State.
29. We were satisfied that the conditions for the making of an order were met. The draft order put forward by the claimant specifies the documents in terms that are apt to cover the particular documents that Haskoning has confirmed it holds. It does not include, as it should, a provision reflecting sub-paragraph (4)(b) of the rule, but in view of the information provided to the court as to the position adopted by Haskoning this omission does not appear to be a material one. The draft order contains a provision for the costs of the application to be awarded in favour of the applicant, but we see no reason why Haskoning should be required to pay any part of the costs. Our understanding was that the only issue in respect of costs lay between the claimant and the Secretary of State and was covered by our decision to reserve all matters of costs between the parties to the court hearing the substantive application for judicial review.
30. We note that the application and draft order treat the Secretary of State as the respondent, whereas the rule shows that the respondent to the application ought to be Haskoning. We have assumed that Haskoning had notice of the application and took no objection to it. If we are mistaken in that assumption and Haskoning wishes to take issue with the order, it has the right to apply to have the order set aside.

Other matters

31. In the light of the various rulings set out above we decided that it was necessary to vacate the hearing listed for the week beginning 19 November and to have the case re-listed for the New Year with a time estimate of 4-5 days.
32. As already indicated, we reserved all questions of costs, though we ordered detailed assessment of the claimant's costs for public funding purposes.
33. We asked counsel to agree the terms of the orders needed to give effect to our decision.
34. Since the hearing we have been provided with a draft order but it has not been possible for counsel to agree it because of a dispute as to the scope of the court's permission to re-amend.
35. The claimant seeks to include provision permitting two re-amendments which are disputed by the Secretary of State. The first relates to what we have described as ground (2) of the existing amended claim. That ground is contained in paragraph 7(b) of the draft re-amended statement of facts and grounds placed before us at the hearing. In its existing form it contends that the MPA decision was flawed by "the failure to reveal, as part of the consultation preceding the MPA Decision, that the Respondent's own consultants had advised that resettlement of the population was feasible". The claimant now seeks to re-amend that paragraph, in a way not signalled in the draft that was placed before us, so as to refer to a failure to reveal "that the policy preventing resettlement was based upon a study (the Phase 2B Report in 2002) which the Defendant knew, or ought to have known, was unreliable".
36. Secondly, the claimant seeks to retain paragraph 48 of the draft placed before us, which reads:

"Additionally, an important factor used to support the policy of exclusion after 10^th June 2004 was the conclusion of the Phase 2B Feasibility Report. This report, as a result of inherent flaws in the process designed by FCO, and the influence of FCO upon it, was or should have been known to FCO to be unreliable. Following disclosure of its conduct, its evolution and its scientific basis the Study is now shown to be flawed. Contrary advice from the FCO's consultants (including the Preliminary Stage Consultants in May 2000 and McAllister Elliott and Partners at the Phase 2B Stage) and of Jonathan Jenness on behalf of the Chagossians, was rejected in favour of the unreliable conclusions of the Phase 2B Study."

37. There is also a proposed addition to that paragraph (an addition made at the request of the Secretary of State to enable him to see how the claimant sought to put his case), which reads as follows:

"Particular flaws in the Study include that:

(a) uncertainties in projected figures were removed;

(b) the science was overstated and misrepresented;

(c) the evidence for increased storminess was unsubstantiated;

(d) the peer reviewers were inadequately qualified and failed to detect the inconsistencies and flaws;

(e) the consultant's models for overtopping were inappropriate for the circumstances and insufficient weight was placed upon the faults in the output;

(f) the consultants failed to use sea-level datasets which would have been available to them at the time and as a result did not investigate the potential for regional departures from the global values which they used."

38. In a note to the court, Mr Kovats submits that those re-amendments fall outside the scope of the permission granted by us at the hearing. He accepts that the court permitted the claimant to raise, on the basis of the drafting history of the Phase 2B study, whether the conclusions contained in the published study fairly represented the opinion(s) of the consultants, but he submits that the court did not grant permission to attack the science in the Part 2B study; and in that connection he refers to the refusal of permission to rely on the Kench review and he submits that without Kench there is no basis for an attack on the science of the Phase 2B study.
39. Mr Pleming has put in a short reply expressing confidence that paragraph 48 (as expanded at the request of the Secretary of State) and the redrafted paragraph 7(b) can be supported without any reliance on Kench. He submits that the pleading should be retained in the form proposed by the claimant. In a further email he states that the difference between the claimant and the defendant in relation to paragraph 48 is confined to the words "and its scientific basis" (and, presumably, the proposed addition spelling that point out).
40. We have no hesitation in confirming that Mr Kovats's submissions are correct. At the hearing we did not understand there to be any application to re-amend ground (2). The draft put forward for our consideration at that time included no such proposed re-amendment. Nor did we understand there to be any suggestion that if permission were granted to rely on further evidence in relation to ground (2), that would open the door to a reformulation of ground (2) itself. We understood the Kench review to challenge the science underlying Phase 2B of the feasibility study but, as explained above, we also understood Mr Pleming to accept that he could not rely on Kench in support of the substantive challenge to the MPA decision, and we refused permission for Kench to be adduced. We did not understand there to be any separate challenge to the science underlying the Phase 2B study, as opposed to the allegation in the existing ground (2) that there was a failure to reveal the advice of the consultants at the time.
41. In those circumstances we are extremely surprised at the claimant's attempt to reformulate ground (2) and to rely on paragraph 48 of the draft in the way spelled out in the draft order. It should have been clear that our grant of permission to re-amend did not extend to those matters; and, for the avoidance of doubt, we would have refused permission in respect of them if they had been raised with us in those terms. Mr Pleming's contention that the contested parts of the pleading can be supported without reliance on Kench misses the point.
42. We hope that with the benefit of that additional indication it will now be possible for counsel to agree the terms of an order.