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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Ruane, Re Application for Judicial Review [2001] NIQB 4 (15 February 2001)
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Cite as: [2001] NIQB 4
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JISCBAILII_CASE_ NI_Legal_System
Neutral Citation no [2001] NIQB 4
Ref:
COGE3331
Judgment: approved by the Court for handing down
Delivered:
15.02.2001
(subject to editorial corrections)
COGHLIN J
Belfast City Council ("the Council"), the respondent to the above entitled judicial review proceedings, has brought this application for the purpose of setting aside the grant of leave to the applicant to apply for judicial review or, alternatively, for the purpose of dismissing the judicial review proceedings for want of prosecution or, alternatively, that the said proceedings should be dismissed as an abuse of the process of the court. The first two bases for the application appear as Grounds 1 and 2 of the amended Notice of Motion dated 16 October 2000 and, upon the morning of the hearing, I gave leave to Belfast City Council to further amend the said Notice by adding thereto the third ground as Ground 2A.
Background Facts
The applicant in the judicial review proceedings is Caitriona Ruane who is the Chairperson of the St Patrick's Carnival Committee ("the Committee") which is a consortium of a number of community festival groups based at the Ashton Centre in the city of Belfast. Amongst other activities, the Committee organised a St Patrick's Day Carnival in Belfast in 1998 and 1999. In 1998 the respondent, Belfast City Council, awarded the Committee the sum of £10,000 to assist with the organisation of the carnival for that year. In 1999 Belfast City Council refused to grant funding for a similar purpose. In or about July 1999, on behalf of the Committee, Miss Ruane submitted an application form for funding by Belfast City Council in respect of the St Patrick's Day Carnival due to be held on 17 March 2000. On 4 January 2000 Belfast City Council accepted a recommendation from its Development Committee not to provide any funding to the Committee until such times as the proposed event was shown to meet all of the conditions stipulated by the Development Committee. Miss Ruane subsequently applied for leave to seek judicial review of Belfast City Council's refusal to provide funding including, among other grounds, the submission that the decision had been taken in breach of the Council's duty not to discriminate against any class of person on the grounds of religious belief or political opinion contrary to Section 76(1) of the Northern Ireland Act 1998. Following adjourned leave hearings on 11 and 15 February 2000 the applicant was granted leave, after an inter partes hearing, on 1 March 2000. Between 3 February and 24 May 2000 four affidavits were sworn on behalf of the applicant and eight affidavits were lodged on behalf of the respondent.
On 24 May 2000 Miss Ruane as Chairperson of the St Patrick's Carnival Committee together with the Secretary of that Committee and a number of other plaintiffs issued a Civil Bill against Belfast City Council claiming damages
"… by reason of the discrimination in the refusal to the said Committee of grants in aid of the St Patrick's Day Carnival organised by the said Committee contrary to Article 28 of the Fair Employment and Equal Treatment (Northern Ireland) Order 1998."
In the course of an affidavit, dated 17 August 2000, Miss Ruane's solicitor, Mr Barra McGrory, stated that the original Order 53 proceedings had been commenced in the hope that, with the dispatch and efficiency inherent in judicial review practice in this jurisdiction, a determination would be obtained before 17 March 2000. Mr McGrory went on to state that, when it became clear that a judicial review hearing would not take place before 17 March 2000, "consideration began to be given to whether other proceedings more suited than judicial review to resolving factual disputes should be resorted to". According to Mr McGrory, "reflection on this topic" culminated in the decision to issue the Civil Bill on 24 May 2000. At paragraph 5 of the same affidavit Mr McGrory deposed that:
"5. As res judicata does not operate in judicial review it would be possible (and invidious) for a finding of this court on discrimination to be apparently contradicted by the County Court having, as that court does, greater facilities for the examination of witnesses. It seemed, accordingly, to the applicant and her advisers that it was better to have the factual issues of discrimination determined by the County Court before the hearing of the judicial review."
In the same affidavit Mr McGrory suggested that either the judicial review should be deferred until after the County Court proceedings had been heard or, alternatively, the judicial review should proceed on Grounds 3(b) to (g) with a hearing as to the remainder of the grounds being postponed until after the County Court proceedings had been determined.
Mr Schofield appeared on behalf of Miss Ruane while Mr McCloskey QC represented Belfast City Council. I am indebted to both counsel for the care and clarity with which they presented their respective submissions to the court.
The Submissions
Mr McCloskey QC accepted that, both in England and Wales and in this jurisdiction, the authorities emphasised that the procedure to set aside leave in judicial review applications should be very sparingly invoked, referring to the judgments of Bingham LJ, as he then was, in R v Secretary of State for the Home Department ex parte Chinoy [1991] COD page 381 and Carswell LCJ in Re Ballyedmond Castle Farms Limited's Application [2000] NI 174. However, Mr McCloskey QC argued that the stance adopted by the applicant amounted to a misuse or abuse of the process of the court in which the applicant's delay and pursuit of an alternative remedy were significant elements. Mr McCloskey QC relied upon the inherent jurisdiction of the court and referred to the judgment of Lord Woolf in Grovit v Doctor [1997] 2 All ER 417 at 424 as authority for the proposition that it was not necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James [1977] 2 All ER 801 in order to establish abuse of process. In anticipation of arguments to be raised by Mr Schofield, Mr McCloskey QC argued that the action of Ms Ruane in seeking to postpone the hearing of all or part of the judicial review proceedings was in breach of the Council's right to a fair and public hearing within a reasonable time in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). In such circumstances, he referred to the obligation of the court under Section 6 of the Human Rights Act 1998 to act in a way which was compatible with Convention rights.
For his part, while he accepted that the court did have an inherent jurisdiction to strike out proceedings as an abuse of process, Mr Schofield submitted that, if a court was to comply with the arguments put forward by Mr McCloskey QC, it would have the practical effect of setting aside the leave to bring judicial review, granted by Kerr J, a jurisdiction which Mr McCloskey QC had conceded was only to be exercised sparingly and in special circumstances. Mr Schofield also relied upon the provisions of Article 6 of the Convention in submitting that to accede to Mr McCloskey QC's submissions would deprive the applicant of her right of access to the court. According to Mr Schofield's argument, the right of access was the primary right, to which the right to a hearing within a reasonable time was subsidiary, a submission which he encapsulated in the assertion that "a late hearing was better than no hearing". Mr Schofield referred me to the decisions in Tinnelly and McElduff v United Kingdom [1998] 27 EHRR 249, Osman v United Kingdom [2000] 29 EHRR 245 and Arrow Nominees v Blackledge [1999] The Times, 8 December. While he conceded that Article 6 of the Convention did not give the applicant the right to seek decisions from two separate tribunals, Mr Schofield referred the court to a number of distinctions between the two respective sets of procedure which he had set out in detail at paragraph III.I.i of his skeleton argument.
The Rights of the Parties According to Article 6 of the Convention
By virtue of Section 6 of the Human Rights Act 1998 it is unlawful for the court to act in a way which is incompatible with a Convention right and, for the purposes of this application, both parties have referred to their respective rights in accordance with Article 6 of the Convention.
In so far as it is relevant to this application, Article 6(1) provides that:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
At a relatively early stage the Strasbourg court emphasised that these words were not limited to pending proceedings but also encompassed a right of access to an appropriate tribunal. In Golder v United Kingdom [1979-80] 1 EHRR 524, after reviewing the content of the Article, the court observed, at page 536:
"Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the rights stated by Article 6(1). This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6(1) read in its context and having regard to the object and purpose of the Convention, a law making treaty, and so to general principles of law.
The court thus reaches the conclusion … that Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the `right to a court', of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only."
However, the court went on to affirm, at page 537, that:
"The court considers, accepting the views of the Commission and the alternative submission of the Government, that the right of access to the courts is not absolute. As this is a right which the Convention sets forth without, in the narrower sense of the term, defining, there is room, apart from the bounds delimiting the very content of any right, for limitation permitted by implication."
Nevertheless, the court has also emphasised that any limitations must not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired.
In Golder's case, the applicant, who was lawfully imprisoned at the material time, sought, but was refused, permission to consult a solicitor with a view to instituting libel proceedings against a prison officer. The court held that it was not for the Home Secretary himself to appraise the prospects of the action contemplated; it was for an independent and impartial court to rule on any claim that might be brought. In declining to grant the request of Mr Golder to consult with his solicitor the Home Secretary failed to respect the right to go before a court guaranteed by Article 6(1). While accepting that it was impossible to say whether Mr Golder would have persisted in his litigation if he had been permitted to consult a solicitor the court observed, at page 531, that:
"The fact nonetheless remains that Golder had made it most clear that he intended `taking civil action for libel'; it was for this purpose that he wished to contact a solicitor, which was a normal preliminary step in itself and in Golder's case probably essential on account of his imprisonment. By forbidding Golder to make such contact, the Home Secretary actually impeded the launching of the contemplated action. Without formally denying Golder his right to institute proceedings before a court, the Home Secretary did in fact prevent him from commencing an action at that time, 1970. Hindrance in fact can contravene the Convention just like a legal impediment."
Further examples of the operation of Article 6(1) may be found in Tinnelly & McElduff v United Kingdom [1998] 27 EHRR 249 and Osman v United Kingdom [2000] 29 EHRR 245. In the former case the applicants accepted that the protection of national security was a legitimate aim which could be invoked to justify limitations being placed on the right of access to a court but the court considered that the conclusive nature of the certificate issued by the Secretary of State for Northern Ireland was crucial in so far as it could not be questioned by the Fair Employment Tribunal and it rejected the Government's assertion that the access enjoyed by the applicants was "as effective as it could be in the circumstances". The court held that the issue of the certificate in such circumstances was disproportionate and a breach of Article 6(1). In Osman the Strasbourg Court held that while the immunity of police from negligence proceedings pursued a legitimate aim, namely, the avoidance of defensive and over cautious policing and diversion of resources, such a defence was disproportionate because it provided a blanket immunity without regard to the merits of the case. The Osman decision has been the subject of authoritative and, in my respectful opinion justified, criticism. In Barrett v Enfield London BC [1999] 2 All ER 193 Lord Browne-Wilkinson when referring to Osman said, at page 198:
"I confess that I find the decision of the Strasbourg court extremely difficult to understand."
He subsequently referred to the problems in applying the reasoning set out in the Osman judgment to the English law of negligence as being "many and various". In the course of an interesting article in the Modern Law Review Volume 62 March 1999, at page 159, Lord Hoffman said of the Osman case:
"We have had a very recent example of a decision of the Strasbourg court giving an interpretation to the Convention which, I venture to suggest, it is inconceivable that any domestic court in this country would have adopted."
I also note the remarks of Lord Cooke in Darker v Chief Constable of West Midlands [2000] 3 WLR 747 at 759. However, I fully accept that the legislative incorporation of Article 6(1) has served to stimulate a much more robust judicial scrutiny of immunity from legal action claimed upon the grounds of public policy. In arriving at a determination of the issues in this case I have taken the following into account:
(1) In the first instance it requires to be emphasised that this applicant has not, in any way, been inhibited from instituting proceedings before the courts in respect of her relevant civil rights. She has not been confronted by any conclusive national security certificate, as in Tinnelly's case, or policy immunity as in Osman's case. In fact, this applicant seeks to maintain two separate sets of proceedings, in different courts at different times against the same defendant. Both sets of proceedings are grounded upon the same set of facts alleged to constitute discrimination against the applicant. Direct discrimination is defined in similar terms by Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and Section 98 of the Northern Ireland Act 1998. A remedy by way of declaration is available to Miss Ruane in the course of either the Civil Bill or judicial review procedure.
(2) As I have already noted above, the Civil Bill proceedings were deliberately instituted by Miss Ruane, once it was appreciated that a judicial review hearing would not be possible prior to 17 March 2000, as a result of a considered decision that such proceedings would be more suited to resolving the anticipated factual disputes. I note that additional advantages accruing to the Civil Bill plaintiff in this case are the much easier access to interlocutory relief by way of particulars, interrogatories, discovery, etc, the use that may be made of the affidavits already obtained for the purpose of the judicial review proceedings and the potential to rely upon indirect discrimination in accordance with Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998.
(3) In such circumstances, I am entirely satisfied that the Civil Bill procedure offers Miss Ruane a fair and public hearing by an independent and impartial tribunal established by law which corresponds, in all relevant respects, with her Convention rights under Article 6(1).
(4) It is of the essence of judicial review that it should afford a speedy and efficient means of challenging and supervising decisions taken by administrative bodies so as to ensure that such bodies act lawfully in the course of their decision making. In this case the relevant decision was the refusal of the respondent Council on 4 January 2000 to provide Miss Ruane's Committee with financial assistance in respect of the St Patrick's Day celebrations on 17 March 2000. The Committee did not receive the funding and the events of St Patrick's Day 2000 are now some time in the past. Indeed, the impossibility of securing a judicial review hearing prior to 17 March 2000 appears to have been one of the main reasons for launching the Civil Bill proceedings. In such circumstances Miss Ruane's organisation could not expect to obtain remedies by way of certiorari or mandamus in judicial review proceedings – see Re McConnell's Application [2000] NIJB 116 – and, as I have already indicated, the remedy of a declaration is available in the Civil Bill proceedings. I also take into account the fact that the present situation requires the respondent Council to defend itself upon two fronts with all the added public expense in time, resources and money and I am not satisfied that inability to pursue the judicial review proceedings is likely to prejudice the plaintiff's Article 6(1) rights in any material respect. As the European Court of Human Rights pointed out in Golder's case and subsequent authorities the right of access to a court is not absolute and, in my opinion, provided that there is no significant prejudice to the applicant/plaintiff the right must be limited by the right of the respondent/defendant not to be oppressed by two forms of litigation and the community's rights to the efficient and fair use of the legal system as well as finality in litigation. It is clear that the court does not have to ignore the wider interests of the community in applying those provisions of the Convention which bear no express limitation – see Murray v UK [1994] 19 EHRR 193 and R v Lambert & Others [Times, 5 September 2000].
In the circumstances, I am persuaded that I should accede to the application by the respondent Council to dismiss the judicial review proceedings as a misuse or abuse of the process of the court. For the reasons which I have set out above, I do not consider that, in doing so, Miss Ruane has established any breach of her right of access to the court in accordance with Article 6(1) of the Convention. Article 6(1) does not afford a litigant an unfettered choice of tribunals in which to pursue or defend his civil rights – see Africa Line Ltd v Fayad (The Times 28 November 2000) and the interests of justice require that the Council should also have a full and fair opportunity to meet the claims against it at a minimum of inconvenience and expense.
Furthermore, I consider that this is a case in which I should set aside the leave to apply for judicial review previously granted by Kerr J. The court has power to accede to such application either under RSC(NI) Order 32 Rule 8 or in accordance with its inherent jurisdiction. It has consistently been observed that this requires a very clear case and that the power should be very sparingly exercised – see Re Ballyedmond's Application [2000] NI 174 and the authorities cited by the learned Lord Chief Justice therein. However, I consider this to be an exceptional case in so far as the original applicant for judicial review has not only chosen to institute and actively pursue an alternative remedy but has done so on the basis that she and her advisers consider that such an alternative is better suited to her claim. While the alternative proceedings were commenced prior to the judicial review procedure in Hilditch v Westminster City Council [1990] COD, 434, it seems to me that the judgment of the Court of Appeal in that case provides assistance and, in particular, the observation of the court that the alternative remedy was "not merely available but had been sought by the applicant". That was also a case in which the alternative procedure was more apt to decide disputed issues of fact. For the reasons which I have given above I do not consider that in setting aside leave the applicant in the judicial review proceedings will suffer any breach of her rights of access to the court in accordance with Article 6(1) of the Convention.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND