England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/05/14

Mr Justice Hickinbottom :

Introduction

1. Each of the five Claimants in these applications is, or has been, a serving prisoner at HMP Albany or HMP Long Lartin; and each makes a claim that the sanitation regime in one of those prisons has subjected him to degrading treatment contrary to article 3 of the European Convention on Human Rights. Some also claim the regime is contrary to their right to private life under article 8.
2. Over 550 such claims have been made. With a view to the effective case management of the claims, two claims were chosen as lead cases, i.e. cases deliberately selected to give guidance that would enable most if not all of the remaining cases to be resolved without a further trial. Those lead cases were tried by me in 2011, over about two weeks. As intended, a wide range of issues were ventilated, argued and ultimately determined.
3. The vast majority of cells in prisons have in-cell sanitation. However, in some older prisons (including HMP Albany and HMP Long Lartin), there are some cells without, because to restructure the accommodation to put in such facilities is impracticable. Those cells tend to be used for higher category (Category A or B) prisoners. All of the claims concerned cells without in-cell sanitation.
4. In the lead cases, there was no real complaint about the regime when the prisoners were out of their cells, when they had access to proper toilet facilities. The complaint was about the sanitation regime when they were confined to their cells, and in particular the confinement for about 13-15 hours every evening/night. Then, they had no free access to a toilet; although, during this period, each cell door had an electronic unlocking Night San system which, when working properly, enabled one prisoner per self-contained landing out of his cell at any time to use the facilities. That electronic system sometimes involved queuing; and, for one reason or another, the system sometimes failed.
5. I dismissed both claims. The judgment is reported as Grant & Gleaves v The Ministry of Justice [2011] EWHC 3379 (QB).
6. Of course, conditions in prison may not be pleasant, or optimal. But the authorities establish, clearly and firmly, that a high level of suffering is required to trigger article 3, put in various ways in the cases, e.g. article 3 is engaged only where there has been resulting "… intense physical or mental suffering" (Pretty v United Kingdom (2002) 35 EHRR 1 at [52]) or where the court has found the treatment has "adversely affected his or her personality in a manner compatible with article 3" (Kalashnikov v Russia [2003] 36 EHRR 34 at [95]). I found, amongst other things, that a requirement for a prisoner to urinate or defecate into a bucket is not of itself degrading and a violation of article 3; and, at HMP Albany, the sanitation regime – and the prison conditions looked at as whole – fell far short of amounting to such a violation.
7. I also held that article 8 could not be relied upon simply because a claim fell below the article 3 threshold; and that article 8 (even if engaged) was not breached in these cases because the regime did not substantively lower the dignity of the prisoners, and their privacy was adequately respected. The prisoners did not share a cell, the regime at the sluice did nothing to disrespect the prisoners' private life, and the prison had considered alternatives which they had not adopted on justifiable grounds.
8. Permission to appeal was refused ([2012] EWCA Civ 1447), Davis LJ, with whom Treacy LJ agreed, saying (at [14]):

"The use of a bucket in a cell as a back up to the otherwise entirely sufficient sanitary arrangements and facilities available, including its availability as a back up to the Night San system when that system failed, does not begin in my view arguably to show an infringement of article 3."

9. He noted that I had found as a fact that the prisoners used the bucket to urinate rarely, and to defecate very rarely (at [3]). But he also said, in relation to degree of usage (at [18]):

"I would, speaking for myself, have to say that even had the judge's findings of fact been other than they were in that there been a rather more frequent requirement to use a bucket in a cell than the judge found, still the same conclusion in my view would have followed."

10. He accepted that, whether a prisoner's article 3 rights were breached was fact sensitive; and so, with regard to prisoners in other prisons, an assessment would have to be made of the regime there and the circumstances of the individual claimants. However, he added (at [19]):

"But even then the sensible and realistic approach laid down by Hickinbottom J can and should be followed. Above all, a sense of reality and proportion is needed here. It must be borne in mind that a minimum level of severity is called for for there to be a case under article 3 in a context such as the present and there is no European line of authority which compels a conclusion other than the one the judge reached."

11. Davis LJ also found that I had been right to conclude that, in the context of article 8, there had been no substantial interference or disregard of the privacy or the rights of the claimants (at [15]-[17]).
12. Whilst Grant & Gleaves was being considered, the other claims were stayed. After the Court of Appeal ruling, and given that those two cases were intended to be lead cases, on 13 May 2013, I gave directions requiring any remaining claimant who wished to continue with his claim to give notice of intention to proceed by 30 June 2013. That Order made clear that, if notice were not given by that date, then the claim would be struck out with costs, automatically and without further order. 109 Claimants gave such notice. The rest of the claims were automatically struck out.
13. On 7 August 2013, I made a further Order in relation to the 109 claims, requiring each claimant who had given notice to set out his claim (if he had not already done so) and to identify how his claim was distinguishable from Grant & Gleaves; with a direction again that, if a claimant did not comply, his claim would be automatically struck out with costs. Of the 109 claims, 80 claimants either did not respond at all or responded merely to confirm that they did not now wish to proceed or responded with no indication why they considered their claim materially different from the lead cases; and, in accordance with the 7 August Order, those claims too were automatically struck out.
14. In respect of the remaining 29 claims, I ordered that, if they were not already in the High Court of Justice (Queen's Bench Division) at the Royal Courts of Justice, they should be transferred there so that they could be case managed efficiently. However, I considered that, in 17 of those claims, the claimant who had purported to distinguish his claim from Grant & Gleaves had not arguably done so. Their claims too were struck out in accordance with my earlier Order. In the Order, I added this:

"If any of those Claimants wish to be reinstated, then they must make a formal application to the court to do so; and that application will be heard at a hearing, which will be by way of videolink in the case of a Claimant who is still a serving prisoner."

15. The Claimants before me have each been struck out in accordance with the provisions I have described, and have applied for their claims to be reinstated. None suggests that the order subjecting him to the sanction of strike out in default of a particular procedural order was other than regular and properly made. Some submit that they were not in default of the order. Most accept they were in default, but submit that they have now complied. In any event, they all seek relief from the sanction of being struck out: each wishes to be reinstated, and to pursue his claim.
16. The five applications were set down for hearing on 2 May 2014. That day, Ben Jaffey of Counsel appeared for the Defendant. Mr Aston, Mr Musgrove and Mr Khan – all of whom remain detained – appeared by way of videolink. Mr Mills and Mr Morrell did not attend. Mr Mills, who had been served with notice of the hearing, had not contacted the court or the Treasury Solicitor; and his application was dealt with in his absence. Mr Morrell had recently been recalled to prison and, in the time available, a videolink with that prison could not be arranged. His application was adjourned to today, when he has appeared by way of videolink.
17. Because of the nature of the applications and the need for videolinks (which meant that each application was dealt with discretely), on 2 May I gave each Claimant the result of his application, indicating that I would give reasons later, in one written judgment. I now give those reasons, together with my determination of Mr Morrell's application.

The Law

18. In respect of relief from sanction, CPR Rule 3.9 provides:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need-

(a) for litigation to be conducted efficiently and at a proportionate cost; and

(b) to enforce compliance with rules practice directions and orders.

(2) An application for relief must be supported by evidence."

19. Those provisions were recently considered by the Court of Appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, which held that, unless the imposition of the order transgressed is challenged by way of appeal (and, as I have said, no such challenge is made in any of these cases) or the applicant can show he was not in fact in default, the starting point is that the sanction was properly imposed and complies with the overriding objective. If the default is trivial, and there is a good reason for it, then relief should usually be granted. But simply overlooking a deadline is unlikely to be not a good reason. That case concerned a sanction imposed in default of filing a cost budget, but the approach of the Court of Appeal is of general application to defaults in respect of orders of the court.
20. Therefore, in considering these applications for relief from sanctions, I must consider, first, whether (even if he had been in time) the particular Claimant would have been permitted to continue with his claim because that claim is distinguishable from Grant & Gleaves and has a reasonable prospect of success. If not, then that is the end of the matter: the application for relief must fail. If the Claimant does satisfy me as to those matters, I must consider whether, in the light of Mitchell, I should exercise my discretion to grant relief and allow the claim to proceed.
21. I now turn to deal with the individual Claimants.

Andrew Simon Aston

22. The Claimant is a serving prisoner at HMP Whitemoor, about which he makes no complaint. However, he was in HMP Long Lartin from about February 2008 to March 2011, and he contends that the sanitation regime there breached his human rights. He issued proceedings in July 2009 in Worcester County Court, claiming a declaration that his Article 3 rights had been infringed and damages for that infringement limited to £5,000. He claims that the automatic night time system "regularly breaks down" and, even when working correctly, he did not have appropriate access to sanitation facilities particularly because the computerised system did not always queue prisoners in order of request. In his particulars, he relied upon (amongst other things) the fact that he had to urinate and defecate in a bucket, and did not have running water in his cell; the bucket was in his cell for up to five hours before he could empty it; the smell was constant and strong; he was expected to eat in the same cell as the bucket; prisoners threw excreta out of their windows, with the result that there were smells from outside; and the disinfectant containers at the sluices were constantly empty, and there was no "loo brush". If the threshold for article 3 was not reached, he made an alternative clam on the same facts under article 8.
23. The case was transferred to the Royal Courts of Justice, where it was stayed pending the outcome of Grant & Gleaves. On 30 May 2013, the Claimant was served with a copy of the 13 May 2013 Order, which required him to lodge a notice of intention to proceed if he wished to continue. He complied by a letter dated 1 June, indicating that he did wish to proceed with his claim. He was served with the 7 August Order, on 14 August. He was therefore required to particularise his claim and explain why it was distinguishable from Grant & Gleaves by 27 September 2013.
24. He responded in a short letter on the day of receipt (14 August), simply saying that he wished to continue. That letter made no attempt to distinguish his case from Grant & Gleaves. No other letter was received by the court or the Treasury Solicitor. Consequently, his claim was struck out by my Order of 5 November. That was served on the Claimant on 14 November. He responded on 22 and 26 November, applying for his case to be reinstated on the basis that of two purported distinguishing features: (i) he was in HMP Long Lartin, not HMP Albany, and (ii) the night time sanitation system regularly broke down. He also submitted that the regime was discriminatory, because the use of cells without in-cell sanitation was confined to high security vulnerable prisoners. In his oral submissions, for the first time, he alleged that a bout of pneumonia he contracted in late 2009 resulted from the unsanitary conditions in which he lived.
25. At the hearing, the Claimant said – and, for the purposes of this application, I accept – that he sent the Treasury Solicitor an in-time letter in August, setting out the substance of his November correspondence.
26. However, I do not consider that this case is distinguishable on any material grounds from Grant & Gleaves, in the sense that, after the judgment in those cases, in my view this claim has no real prospect of success.
27. I appreciate that the Claimant complains of the regime at HMP Long Lartin, and the lead cases both concerned HMP Albany; but the Claimant does not suggest that the regimes were materially different. Each had a similar Night San night time regime; and, even if the breakdown rate were higher, that was not material in the sense that it remains unarguable that, as a result of the sanitation regime or the prison regime as a whole, the Claimant suffered anything approaching the high article 3 threshold. There is no support for the proposition that the breakdown rate was substantially higher. As Davis LJ indicated, even though the use of a bucket for toilet purposes was very low in HMP Albany, even a somewhat higher use would not approach that threshold.
28. Insofar as the Claimant complains about prisoners throwing excreta out of windows and the slopping out procedure – e.g. empty disinfectant bottles, and no brush – if sufficiently serious, these might properly be the subject of a complaint to the prison using the usual complaints procedure; but they are insufficient, on their own or with the other matters of which the Claimant complains, to found an article 3 claim.
29. Nor is there force in the contention that the scheme was discriminatory. In providing prison accommodation, there is now more focus on value for public money. Older prisons and parts of prisons therefore tend to have been built to a higher security (and this more expensive) specification. The Prison Service was clearly justified in placing the higher security prisoners in the higher security cells, which are less likely to have in-cell sanitation. The Claimant is a Class A prisoner.
30. Finally, I am similarly unimpressed with the alternative article 8 claim. As Grant & Gleaves emphasises, just because a claim fails to meet the article 3 threshold does not mean that it simply falls into article 8. The criteria for each of those sets of rights are different. In this case, the Claimant makes no arguable case that his right to respect for private life has been breached. His was a single cell, and there is no evidence that the system for emptying buckets at HMP Long Lartin was materially different from that at HMP Albany.
31. For those reasons, the Claimant has no real prospect real prospect of success in pursuing this claim, and, at the hearing on 2 May, I refused the application for relief from sanction. This claim will remain struck out.

Peter James Andrew Musgrove

32. The Claimant is a long term prisoner, having been in custody for over 20 years. Before 1989, he was almost exclusively in prisons with in-cell sanitation, but was transferred to HMP Long Lartin in September 2009.
33. He sent a letter before action on 18 November 2009, and issued proceedings in the Royal Court of Justice on 10 February 2010. He made two complaints, concerning (i) the Night San system, and (ii) the general state of the ablutions facilities. He did not claim any specific relief.
34. His claim was stayed pending the resolution of Grant & Gleaves. Pursuant to my Orders, on 22 June 2013 he filed a notice of intention to proceed; and, on 3 September he filed Particulars of Claim, in which he set out his claim and why he considered it distinguishable from Grant & Gleaves.
35. He said that the Night San system was operated 11 hours per day (13 hours on Saturday and Sunday), and it allowed a prisoner 14 minutes to use the toilet. It allowed eight prisoners to "queue", but the queuing system was disrupted by prison officers' rounds. Because prisoners could not get to the toilet, they threw urine and faeces out of their windows, which caused smells which meant that prisoners had to keep their windows shut. Furthermore, he made many complaints about the general conditions of the facilities, e.g. leaking pipes, dirty sinks and toilet areas and ceilings that (in the Claimant's view) needed repainting.
36. He sought to distinguish his case from Grant & Gleaves, as follows:

"24. This claim is different from that of [Grant & Gleaves] as the Claimant's claim is not one of greed but of genuine concern for the conditions and the Claimant's own health.

25. The Claimant does not seek money from the Defendant, unless the court so orders that the Defendant pay the Claimant monies."

37. He also said that the Night San system that operates at HMP Long Lartin was not the same as that of HMP Albany; but gave no particulars of the differences.
38. The Claimant said that he suffers from asthma, and suffered a chest and throat infection for three days from 19 November 2009.
39. In the Order of 5 November 2013, I declared the claim struck out as the Claimant had failed to distinguish Grant & Gleaves. The Claimant applied to set aside that order, on the basis that the cases were distinguishable and, in his Particulars of Claim, he had distinguished them.
40. At the hearing, in terms of distinguishing his case, the Claimant said he relied upon just two points:

i) His motivation, as set out in his Particulars of Claim.

ii) He said that he had a back condition which made it more difficult to use a bucket as a toilet. He had had an MRI scan in July 2010 which confirmed that he had a back injury.

41. I can deal with those two points shortly:

i) He seeks to distinguish his case from Grant & Gleaves on the basis the claimant's motivation in those cases was "greed", and his is not. However, (a) motive for pursuing an action in itself is not material: an individual is entitled to pursue a legitimate claim for damages, if he has one; and (b) Mr Grant in fact dropped his claim for damages during the course of the case, pursuing only a declaratory relief.

ii) The Claimant had not suggested that any back condition made the use of the bucket more onerous for him before the day of the hearing before me. His MRI scan was in 2010: he has clearly suffered from the condition since at least then. It is not simply that he is too late to raise the issue now – although, he is – but that, if his back caused him such difficulties in using the bucket so as to amount to suffering for article 3 purposes, it is inconceivable that he would not have mentioned it before. He does not suggest that he raised this as a specific issue with the prison authorities at the time. It is noteworthy that he raised another medical issue – his chest infection in 2009 – as having been caused by the sanitation conditions without any medical support.

42. With regard to the matters in his written pleading and submissions, not pursued at the oral hearing, I need say little about them; except that the Claimant was right not to press them. They have no force. Whilst I appreciate that the Claimant complains about the system at HMP Long Lartin and not HMP Albany, he has not identified any possible material differences. Both have the same Night San system. According to the Claimant, the regime at HMP Long Lartin is somewhat better than HMP Albany, because it applies for 11 hours and 13 hours at weekends rather than 13 hours and 15 hours respectively at HMP Albany. Furthermore, prisoners have 14 minutes to use the toilet, as opposed to 9 minutes at HMP Albany. Although no doubt the pattern of breakdowns was different, again there is no evidence of any greater rate of breakdowns at HMP Long Lartin than HMP Albany; and, in any event, as I have indicated, even a modestly higher rate of bucket use would still not result in a breach of article 3. No significant difference in regimes is evident.
43. Consequently, I consider that the Claimant has failed to distinguish his claim from Grant & Gleaves; and, in any event, his claim stands no real prospect of success.
44. For those reasons, I refused the application for relief from sanction. This claim will remain struck out.

Ali Khan (formerly Paul Reese)

45. The Claimant commenced proceedings in Peterborough County Court on 30 June 2011, when he was in HMP Whitemoor, about which he made no complaint. His case was based upon a six week period earlier in 2011 when he was in HMP Long Lartin, when he did not have in-cell sanitation, being in a single cell with the Night San system. He claims that the time allotted by that system – he says that it was 12 minutes – was insufficient to go to the toilet, wash, clean his teeth and make a drink. He says that it was sometimes five hours before he could empty his bucket, once used. As a practicing Muslim, he was unable to practice his faith properly because he was unable to wash having used the bucket. He claims that the emptying of the bucket at the communal sluice was humiliating and degrading, and that the regime caused him anxiety, inferiority, humiliation, severe migraines and a worsening of bowel problems. By way of relief, he claimed £2,700 in damages.
46. The Claimant indicated that he wished to proceed, and he was served with the 7 August 2013 Order on 22 August. That meant that he had until 27 September to file an explanation of why his claim was distinguishable from Grant & Gleaves. Nothing was filed, and his claim was automatically struck out. In an undated letter, received by the Treasury Solicitor on 9 December 2013, he sought to have the claim reinstated.
47. At the hearing before me, the Claimant said – and, for the purposes of his application, I accepted – that, despite the terms of his Particulars of Claim, he was in a cell without in-cell sanitation for the whole of his stay at HMP Long Lartin, and not just the six weeks he had pleaded.
48. At that hearing, he relied upon only one matter to distinguish his claim from Grant & Gleaves, namely that the inability to leave his cell at night to wash his hands made him feel dirty, which had a significant adverse effect on his psychiatric and psychological condition.
49. I do not have the benefit of either a medical report or even the Claimant's medical records, but accept that he has significant mental health issues. However, there is simply no evidence that the sanitation regime at HMP Long Lartin caused or materially contributed to that condition. It is noteworthy that, several years after he left that prison, the Claimant unfortunately appears to be suffering from a very significant psychiatric condition. He is currently detained in Rampton Hospital.
50. Although he did not rely upon them at the hearing, I have considered all of the other matters raised by the Claimant in his claim. I do not consider any, individually or in aggregate, arguably make his claim distinguishable from Grant & Gleaves.
51. I sympathise with the Claimant, for whom, clearly, prison may have been particularly difficult and burdensome. However, this claim is patently unarguable.
52. For those reasons, I refused the application for relief from sanction. This claim will remain struck out.

Craig Nicholas Mills

53. The Claimant was at HMP Albany for an unspecified period from January 2007. It seems that, following a period in another prison, he has since been released. He failed to appear on 2 May, and I indicated in his absence that I would in those circumstances refuse his application.
54. He commenced a claim based on the sanitation regime at HMP Albany in Newport Isle of Wight County Court on 15 August 2008, claiming £4,100 to the issue of proceedings plus £50 per week thereafter. In due course, his claim was stayed and, after the resolution of Grant & Gleaves, he indicated that he wished to continue.
55. He was served with the 7 August 2013 Order on 15 August. On 19 August, he indicated that he did wish to continue – but he did not attempt to identify distinguishing features of his claim compared with the lead cases. His claim was consequently automatically struck out, as confirmed in the Order of 5 November 2013. On 26 November, he applied for relief against sanction, on the basis that he has always, from a child, suffered from anxiety and stress, and he becomes extremely anxious of he is unable to plan with some degree of certainty when he can use the toilet. The night time sanitation regime at HMP Albany was therefore, he contends, particularly onerous for him.
56. However, the Claimant says that he has, throughout the years, "suffered in silence", until now. He accepts that he did not indicate to the prison that he had these particular concerns. In those circumstances, it is inconceivable that the prison owed him any particular duty, or that the prison was in breach of any obligation it may have had towards him under Article 3.
57. That being the only distinguishing feature in his case upon which the Claimant relies, his application for relief from sanction was bound to fail. As a result, I refused his application at the hearing of 1 May, in his absence. His claim will remain struck out.

Craig Lee Morrell

58. The Claimant was sentenced to a 10 year term of imprisonment in November 2008. From April 2009 to 2011 – a period of about 18 months – he served that term in HMP Long Lartin. In that prison, which is the only prison about which he complains, he was in a one-man cell without in cell sanitation, and with the Night San regime. He was released on licence in January 2014, but was recalled in April and remains detained (but not at HMP Long Lartin)
59. He issued proceedings in Worcester County Court on 28 April 2010, claiming £50 per week for his time at HMP Long Lartin as a result of the sanitation regime breaching his article 8 rights. In essence, it was the fact that he was from time-to-time r to use a bucket at all that lay at the heart of his complaint – although he did say that he had to empty the bucket several times a day, which does not accord with the evidence of any other prisoner at any prison. No further particulars were given.
60. His claim was stayed pending the ultimate conclusion of Grant & Gleaves. When put on notice of the lifting of the stay, he served notice of intention to proceed on 5 June 2013. He was served with the order requiring him to distinguish his case from Grant & Gleaves on 19 August, and he responded that day:

"I would like to carry on with my claim for compensation as this was against my human rights. Thank you."

Thus, as he had failed to identify anything that might distinguish his case, it was duly struck out. In his application for relief against sanctions, again, he did not seek to distinguish his case from Grant & Gleaves.

61. At the hearing today, the Claimant explained that the sole basis upon which he sought to distinguish his case is on the basis that he suffers from anxiety, which causes him to have a tick. As a result, at the sluice, nine times out of ten he emptied the contents over the floor or himself. However, (i) the Claimant has never mentioned this before, (ii) there is not medical evidence supporting it, and (iii) there is no suggestion that the Claimant raised this as an issue at the time. Furthermore, during today's hearing, when Mr Jaffey was making fairly modest submissions in response, the Claimant left the videoroom, suggesting in blunt terms that he thought the claim was a waste of time. Mr Jaffey submitted that this suggested that the Claimant was never committed to seeing any claim through to trial. I agree.
62. Insofar as the Claimant's written claim is based upon the proposition that not having in-cell sanitation is, in itself, a breach of article 3, that was a submission which failed in Grant & Gleaves.
63. In any event, on the basis of what I have seen and heard, I do not consider that the claim is sensibly distinguishable from Grant & Gleaves, nor do I consider that the Claimant has any real prospect of succeeding with his claim.
64. I refuse the application for relief from sanction.

Conclusion

65. For those reasons, I refused the application for relief from sanction in each of the five actions. Each will consequently remain struck out.