Hilary
Term
[2019] UKSC 9
On appeal from: [2015] NICA 66
JUDGMENT
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In
the matter of an application by Hugh Jordan for Judicial Review (Northern
Ireland)
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before
Lady Hale, President
Lord Reed, Deputy President
Lord Carnwath
Lord Lloyd-Jones
Lady Arden
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JUDGMENT GIVEN ON
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6 March 2019
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Heard on 23 October 2018
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Appellant
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1st Respondent
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Karen Quinlivan QC
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Sean Doran QC
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Fiona Doherty QC
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Ian Skelt
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(Instructed by Madden
and Finucane Solicitors)
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(Instructed by Coroners
Service for Northern Ireland)
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2nd Respondent
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Tony McGleenan QC
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Martin Wolfe QC
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Adrian Colmer
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(Instructed by
Crown Solicitor’s Office (Belfast))
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3rd Respondent
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Peter Coll QC
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Philip McAteer
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(Instructed by
Departmental Solicitor’s Office)
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Respondents:
(1) Coroners Service for Northern Ireland (written
submissions only)
(2) Chief Constable of the Police Service for
Northern Ireland
(3) Department of Justice
LORD REED: (with whom Lady
Hale, Lord Carnwath, Lord Lloyd-Jones and Lady Arden agree)
1.
The central issue in this appeal is whether the Court of Appeal in Northern
Ireland was entitled to order that a claim for damages under section 8 of the
Human Rights Act 1998, for breach of the requirement under article 2 of the
European Convention on Human Rights that an investigation into a death should
begin promptly and proceed with reasonable expedition, should not be brought
until an inquest has been concluded, or if already brought should be stayed
until after that date.
The facts
2.
The appellant’s son, Pearse Jordan, was shot and killed by a member of
the Royal Ulster Constabulary on 25 November 1992. In 1994 the appellant’s
husband, Hugh Jordan, made an application to the European Court of Human
Rights, complaining that the failure to carry out a prompt and effective
investigation into his son’s death was a violation of article 2. An inquest
commenced on 4 January 1995 but was adjourned shortly afterwards. On 4 May 2001
the European Court of Human Rights upheld Mr Jordan’s complaint and awarded him
£10,000 in respect of non-pecuniary damage, together with costs and expenses: Jordan
v United Kingdom (2003) 37 EHRR 2.
3.
A fresh inquest into Pearse Jordan’s death commenced on 24 September
2012, and a verdict was delivered on 26 October 2012. Hugh Jordan then brought
proceedings for judicial review of the conduct of the inquest, which resulted
in the verdict being quashed: In re Jordan’s application for Judicial Review
[2014] NIQB 11. A subsequent appeal against that decision was dismissed:
[2014] NICA 76.
4.
In 2013 Hugh Jordan brought the present proceedings for judicial review,
in which he sought declarations that the Coroner and the Police Service of
Northern Ireland (“PSNI”) had been responsible for delay in the commencement of
the inquest in violation of his rights under article 2, together with awards of
damages under section 8 of the Human Rights Act in respect of the delay from 4
May 2001 until 24 September 2012. Stephens J upheld the claim against the PSNI,
finding that there had been a series of failures to disclose relevant
information until compelled to do so, and also a delay in commencing a process
of risk assessment relating to the anonymity of witnesses: [2014] NIQB 11,
paras 350-359. Following a further hearing in that case and five other similar
cases, he made a declaration that the PSNI “delayed progress of the Pearse
Jordan inquest in breach of article 2 of the European Convention on Human
Rights and contrary to section 6 of the Human Rights Act 1998”, and awarded
damages of £7,500: [2014] NIQB 71.
5.
The Chief Constable of the PSNI appealed against the declaration and
award of damages, contending that although the PSNI might have been responsible
for part of the delay, they should not have orders made against them where
other state authorities had also been responsible for the delay but were not
party to the proceedings. Hugh Jordan cross-appealed against the dismissal of
his claim against the Coroner. The Department of Justice was joined as a
respondent to the proceedings.
6.
It is a matter of agreement before this court that, at the hearing of
the appeal, the Court of Appeal raised a preliminary issue relating to the
timing of the application for judicial review, and heard argument on that issue
only. The judgment itself states that the issue of timing was raised by counsel
for the PSNI, who argued that the application was time-barred under section
7(5) of the Human Rights Act, since there was no finding that delay in breach
of article 2 had occurred within the period of 12 months immediately prior to
the commencement of the proceedings, and there was no reason why the court
should exercise its discretion to extend the period for bringing proceedings
under section 7(5)(b).
7.
Judgment was handed down on 22 September 2015: [2015] NICA 66. That
judgment was subsequently withdrawn and a revised judgment, also dated 22
September 2015, was issued on 12 May 2017. The resultant orders, also dated 22
September 2015, were made on 10 June 2017. The judgment and orders are
discussed below. The immediate result of the orders was a stay of proceedings.
8.
A further inquest into Pearse Jordan’s death commenced on 22 February
2016 and a verdict was delivered on 9 November 2016. That verdict was challenged
in judicial review proceedings brought by Pearse Jordan’s mother, the present
appellant, but without success: In re Jordan’s application for Judicial Review
[2018] NICA 34. She also took over the conduct of the present proceedings
from her husband as his health had deteriorated so as to prevent him from
taking part.
9.
On 23 October 2017, following a hearing which it had convened of its own
motion in the exercise of its case management functions, the Court of Appeal
lifted the stay on the present proceedings. It had been in place for a period
of two years and one month.
10.
Both the Chief Constable’s appeal and the claimant’s cross-appeal were
heard during 2018. The cross-appeal was dismissed: [2018] NICA 23. The appeal
has not yet been decided.
11.
The delays in the investigation into Pearse Jordan’s death, and the
repeated litigation which has characterised that process, are a common feature
of what have come to be known as “legacy” cases: that is to say, cases
concerning deaths occurring in Northern Ireland during the “Troubles”. In his
recent judgment In re Hughes’ application for Judicial Review [2018] NIQB 30, Sir Paul Girvan found that there was systemic delay in these cases,
arising from a lack of resources to fund inquests of the length, complexity and
contentiousness involved. There were at that point 54 inquests pending in
relation to 94 deaths. Only one inquest was heard during 2018. In an effort to
address this problem, reforms have been proposed by the Lord Chief Justice of
Northern Ireland which, it is hoped, will enable all the outstanding cases to
be heard within five years. The proposed reforms have not however been
implemented, as the necessary funding has not been provided.
The judgment and order of the Court of Appeal
12.
In its judgment the court considered how section 7(5) of the Human
Rights Act applies to complaints of delay in relation to the holding of
inquests. Section 7(1)(a) provides that a person who claims that a public
authority has acted in a way which is made unlawful by section 6(1) (ie has
acted in a way which is incompatible with a Convention right) may bring
proceedings against the authority under the Act. Section 7(5) provides:
“(5) Proceedings under
subsection (l)(a) must be brought before the end of -
(a) the period of one year
beginning with the date on which the act complained of took place; or
(b) such longer period as
the court or tribunal considers equitable having regard to all the
circumstances …”
13.
The court observed that it was apparent from the history of this case and
other legacy cases that delay as a result of failures to disclose evidence had
been a recurring problem. Where there had been a series of failures of
disclosure, was it necessary, the court asked, for the applicant to issue
proceedings within one year of the end of a particular failure to disclose, or
was the applicant entitled to include periods of delay resulting from earlier
failures where proceedings were issued within 12 months of the latest failure?
Might the answer to that question depend upon whether there was a finding that
all of the failures of disclosure were part of a policy or practice to cause
delay?
14.
The court did not answer these questions, but it observed that in the
light of these issues, and the very long delays occurring in legacy cases,
those who wished to avoid being captured by the primary limitation period under
section 7(5)(a) might well feel obliged to issue proceedings separately in
relation to each and every incident of delay. That might involve separate
proceedings against different public authorities allegedly contributing to
periods of delay which might or might not overlap. If each case had to be
pursued within one year of the end of each particular element of delay, that
would introduce a proliferation of litigation in respect of which periods of
delay justified an award of damages against which public authorities.
Practicality and good case management pointed towards ensuring that all of
those claims against each public authority should be heard at the same time. In
the present case a fresh inquest had been ordered (ie the inquest which began
on 22 February 2016 and had already been completed when the substituted
judgment was delivered). If it did not take place within a reasonable time,
that would constitute a fresh breach of the Convention for which a remedy,
including damages, might be available. It was when the inquest was completed
that it would be possible to examine all the circumstances surrounding any
claim for delay, and the court would then be in a position to determine whether
adequate redress required an award of damages and, if so, against which public
authority in which amount.
15.
The court stated at para 21:
“We consider, therefore, that in
legacy cases the issue of damages against any public authority for breach of
the adjectival obligation in article 2 ECHR ought to be dealt with once the
inquest has finally been determined. Each public authority against whom an
award is sought should be joined. In order to achieve this it may be necessary
to rely upon section 7(5)(b) of the 1998 Act. The principle that the court should
be aware of all the circumstances and the prevention of even further litigation
in legacy cases are compelling arguments in favour of it being equitable in the
circumstances to extend time if required. Where the proceedings have been
issued within 12 months of the conclusion of the inquest, time should be
extended.”
This appears on its face to constitute general guidance
for all legacy cases in which damages are sought. The court made it clear at
para 22 that it expected there to be very few, if any, exceptions to this
approach:
“We find it difficult to envisage
any circumstances in which there should be an exception to the approach set out
in the preceding paragraph in such cases.”
16.
The court concluded at para 23:
“For the reasons given we consider
that the claim for damages for delay should be assessed after the completion of
the inquest but should be made within one year of the completion. Since we have
ordered a fresh inquest in this case that period has not yet commenced. We will
hear the parties on whether the appeal on the award of damages should be
adjourned until after the inquest or allowed without adjudication on the merits
to enable the issue of a fresh claim.”
The first sentence in this passage again appears to
constitute general guidance for legacy cases (since damages had already been
assessed in the present case). So far as the present case was concerned, the
alternatives set out in the third sentence were either to adjourn further
consideration of the appeal until after the inquest had been completed, or to
allow the appeal without a decision on the merits, so that the proceedings were
brought to an end and a further claim could be brought after the inquest. In
the event, the resultant order stayed the proceedings until the conclusion of
the inquest, as explained earlier.
17.
Separate orders were made on 10 June 2017 in respect of the appeal and
the cross-appeal. In relation to the appeal, the court ordered:
“1. that the claim for
damages for breach of the article 2 procedural requirement that an inquest be
conducted ‘promptly’ should not be brought until the inquest has finally been determined.
2. that where a claim for
damages for breach of the article 2 procedural requirement that an inquest be
conducted ‘promptly’ is brought within 12 months of the conclusion of the inquest,
time should be extended under section 7(5)(b) of the 1998 Act [ie the Human
Rights Act].
3. that the appeal be
stayed until the conclusion of the inquest proceedings.”
In relation to the cross-appeal, the court ordered:
“1. that the issue of delay
at ground 7 on the cross-appeal be stayed until the conclusion of the inquest
proceedings.”
18.
Paragraph 1 of the order in the appeal was consistent with the general
guidance given in the judgment, and appeared to lay down a general rule that
claims of the present kind should not be brought until an inquest has been
concluded. It has no direct bearing on the present proceedings, where the claim
was brought as long ago as 2013. Paragraph 2 addressed the implications of
paragraph 1 in relation to the limitation period imposed by section 7(5). Only
paragraph 3, and the order in the cross-appeal, directly concerned the present
proceedings.
19.
The decision of the Court of Appeal appears to have been understood as
laying down a general rule that claims of the present kind could not be brought
before the conclusion of an inquest, and that any claims which had been brought
before that stage should be stayed until then.
The present appeal
20.
The present appeal was brought in order to challenge the general
guidance given by the Court of Appeal, reflected in paragraph 1 of the order
made in the appeal. The main issue in the appeal was agreed to be whether the
Court of Appeal “was correct to rule that a victim adversely impacted by delay
in the conduct of an inquest could not bring a claim for damages prior to the
conclusion of the inquest”. The appellant sought to set aside “the judgment and
order made by the Northern Ireland Court of Appeal whereby it decided that her
claim for damages for breach of article 2 ECHR by reason of delay could only be
brought after the conclusion of the inquest into her son’s death”.
In re McCord’s application for Judicial Review
21.
After the hearing of the present appeal, the Court of Appeal handed down
judgment in another legacy case where the applicant had applied for leave to
issue judicial review proceedings in which he sought a declaration that the
non-disclosure of certain documents by the PSNI had caused delay in the holding
of an inquest, in violation of his rights under article 2: In re McCord’s application
for Judicial Review, unreported, 18 January 2019. The proceedings had been
stayed by the High Court.
22.
In the course of its judgment, the Court of Appeal considered the
judgment under appeal in the present proceedings (in its original version). It
said at paras 21-22, in relation to para 27 of its original judgment in the
present case (identical to para 22 of the revised version, cited at para 15
above):
“21. We accept that this
passage created the impression that in every legacy case any application to
pursue a remedy by way of damages for delay could only be dealt with at the end
of the inquest. Indeed it is clear that that was the common understanding of
the parties before the learned trial judge as a result of which the applicant
decided to abandon the determination of his claim for damages in the
proceedings and rely solely upon the claim for a declaration …
22. We consider, however,
that this passage of the judgment ought to be interpreted in a rather more
qualified manner. First, it has to be borne in mind that the court, having
given the judgment in September 2015, decided of its own motion to relist the
case for the determination of the damages claim in June 2017 having regard to
the fact that the inquest had not yet concluded. Secondly, it needs to be borne
in mind that this was a case management decision and was not intended to set
forth any rule of law about the entitlement to damages in legacy cases. Thirdly,
the case was concerned with circumstances in which there were active and
ongoing inquest proceedings but where issues of delay in the course of those
active proceedings arose. It was such cases that were being discussed in this
passage of the judgment and we consider that the interpretation of para 27 [ie
para 22 of the revised version] should be confined to cases in which those
circumstances are present.”
23.
The court observed at para 23 that the case before it was different:
“The inquest in this case has not
taken place. No Coroner has been allocated to hear it and no materials have
been provided to the Coroner’s Service by the police. It is impossible to
estimate how many years it might take before the inquest might proceed …”
In these circumstances the appeal was allowed.
24.
In the light of this judgment, it appears that the Court of Appeal
intends the guidance given in the present case to be confined to cases where
the only outstanding issue is damages and where an inquest can be expected to
begin within the near future, if not already under way. The court also
indicated in para 22 that the appropriateness of the stay should be kept under
review, and that it should be lifted if the claim for damages will not
otherwise be determined within a reasonable time.
Discussion
25.
In considering the guidance given by the Court of Appeal in the present
case, as clarified in the case of McCord, it must be borne in mind at
the outset that, in cases of the present kind, it is the delay itself which constitutes
a breach of the claimant’s Convention rights and gives rise to a right to bring
proceedings under the Human Rights Act. The breach does not crystallise only
after the inquest has been concluded: the claimant is entitled to bring
proceedings as soon as the delay reaches the requisite threshold under article 2.
26.
Claims arising from such delay are brought under section 7(1)(a) of the
Human Rights Act. That provision confers a statutory right on any person who
claims that a public authority has acted in a way which is incompatible with a
Convention right to bring proceedings against the authority, provided that he
or she qualifies as a victim of the unlawful act and brings the proceedings
within the time limits set by section 7(5). The court then has the power to
grant appropriate relief under section 8. This may take the form of relief
designed to end the delay, such as a mandatory order or declaration, or relief
designed to compensate for the consequences of delay, in the form of an award
of damages. In the present proceedings, both a declaration and damages were
sought and awarded. The same remedies were also sought in the McCord case,
although the claim for damages was abandoned in light of the guidance given in
the present case.
27.
No court can take away the right conferred by section 7(1)(a), whether
in the exercise of case management powers or otherwise. Leaving aside the
court’s power to control vexatious litigants and abuses of process, which are
not here in issue, there can be no question of anyone being prevented from bringing
proceedings at a time of their choosing (subject to the limitation provision in
section 7(5)) in respect of a claimed violation of their Convention rights.
28.
Although the court cannot prevent proceedings from being brought by
persons who claim that their Convention rights have been violated, it can
exercise powers of case management in relation to those proceedings. Such
powers can include ordering a stay of proceedings in appropriate circumstances.
In that regard, however, three important aspects of Convention rights must be
borne in mind.
1. Rights that are practical and effective
29.
First, the European Court has emphasised many times that Convention
rights must be applied in a way which renders them practical and effective, not
theoretical and illusory: see, for example, Airey v Ireland (1979) 2
EHRR 305, para 24. The effectiveness of the right under article 2 to have an
investigation into a death begin promptly and proceed with reasonable
expedition could be gravely weakened if there were a general practice of
staying proceedings seeking to secure the prompt holding of an inquest,
typically by obtaining a mandatory order or a declaration. Although
compensation might be payable at a later stage, the primary object of the
Convention, and of the Human Rights Act, is to secure compliance with the
Convention so far as possible, rather than to tolerate violations so long as
compensation is eventually paid.
30.
On the other hand, a practice of staying the assessment of damages (as
distinct from the consideration of remedies designed to end the delay) until
the entirety of the delay can be considered is less likely to undermine the
effectiveness of the right, since that is less likely to depend on the point in
time at which damages are assessed and awarded. Nevertheless, it remains
necessary to consider whether that might be the consequence of a stay in the
individual case before the court.
2. Determination within a reasonable time
31.
Secondly, since the right conferred by section 7(1)(a) of the Human
Rights Act is a civil right within the meaning of article 6 of the Convention,
a claimant is entitled under that article to have his claim determined within a
reasonable time. That right under article 6 is distinct from the article 2
right on which the proceedings are based. A breach of the article 6 right is
itself actionable under section 7(1)(a).
32.
The staying of proceedings will be unlawful if it results in a breach of
the “reasonable time” guarantee in article 6. That would be a real possibility
in some cases, if stays until after the completion of an inquest were ordered
as a general rule. In the McCord case, the Court of Appeal observed that
it was impossible to estimate how many years it might take before the inquest
might proceed. In the proceedings brought by Hugh Jordan successfully
challenging the verdict of the second inquest, the Lord Chief Justice remarked
that “if the existing legacy inquests are to be brought to a conclusion under
the present system someone could easily be hearing some of these cases in
2040”: [2014] NICA 76, para 122. The state of affairs described in Sir Paul
Girvan’s recent judgment In re Hughes’ application for Judicial Review is
consistent with that assessment. Plainly, a stay of that duration, or anything
like it, would constitute a breach of article 6.
3. The proportionality of a restriction on access
to the courts
33.
Thirdly, since a stay of proceedings prevents a claim from being pursued
so long as it remains in place, it engages another aspect of article 6 of the
Convention, namely the guarantee of an effective right of access to a court:
see, for example, Woodhouse v Consignia plc [2002] EWCA Civ 275; [2002] 1 WLR 2558. It must
therefore pursue a legitimate aim, and there must be a reasonable relationship
of proportionality between the means employed and the aim sought to be
achieved: see Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR
249, para 72. It follows that even in a case where a stay would not render the
article 2 right ineffective or breach the “reasonable time” guarantee in
article 6, it is nevertheless necessary to consider whether it would be a
proportionate restriction of the right of access to a court. As will be
explained, that exercise requires consideration of the circumstances of the
individual case before the court.
34.
So far as legitimate aims are concerned, the Court of Appeal mentioned
two objectives: that a proliferation of litigation should be avoided, and that
the court should be aware of all relevant circumstances when determining
claims. Both of those aims are clearly legitimate. The court’s concern about a
potential proliferation of litigation was based, as it explained, on
uncertainty in the legal profession about the answers to certain questions
affecting the limitation of claims: whether a separate violation of the article
2 right to a prompt investigation, for which a separate claim arises, occurs on
every occasion when a public authority is responsible for some measure of
unjustified delay; and if so, whether such claims become time-barred under
section 7(5)(a), subject to the court’s exercise of its discretion under
section 7(5)(b), 12 months after each claim arises. How those questions should
be answered has seemingly yet to be considered. If a suitable case were brought
before the court for determination, that uncertainty could be resolved one way
or the other. Until that occurs, however, the court’s concern that uncertainty
may result in a proliferation of litigation is reasonable and constitutes an
important consideration on one side of the scales.
35.
In relation to the other legitimate aim, namely that the court should be
aware of all relevant circumstances, the point made by the Court of Appeal was
that it is only after an inquest has been completed that it is possible to
determine whether adequate redress for delay requires an award of damages, and
if so against which public authority and in which amount. Whether that is so
depends on how damages are assessed. Hitherto, assessment has not depended on
factors which can only be considered after an inquest. The possibility of
assessing damages on a broadly conventional basis prior to the conclusion of an
inquest is demonstrated by several judgments of the European Court in cases
emanating from Northern Ireland, including its judgment in the Jordan
case.
36.
That is not to say, however, that there may not be good practical
reasons for staying the proceedings, where the question arises of whether it is
appropriate to award damages, and if so in what amount. Particularly in a
situation where the court may have to decide claims against different public
bodies in respect of the same or different periods of delay, deferring
consideration of these issues until after the conclusion of an inquest may
enable the court to consider all relevant periods of delay, and responsibility
for them, at one and the same time. It is therefore another means of reducing the
risk of an undue burden being placed on the courts by a proliferation of claims
for damages (and potentially for contribution, depending on how the concept of
joint and several liability applies in this context: another question which
seemingly has yet to be considered). As indicated earlier, this is a relevant
and significant factor to be weighed in the balance.
37.
Whether a stay is proportionate depends on an assessment of the weight
of the competing interests at stake in the circumstances of the particular
case. The cogency of the arguments in favour of a stay will depend on the
degree of risk that the proceedings may otherwise result in a proliferation of
litigation, if that is the legitimate aim pursued. On the other side of the
scales, the importance to the claimant of obtaining monetary redress for the
violation of his or her Convention rights without avoidable delay has to be
considered. In most cases the claimant is likely to be the widow, parent or
child of the deceased, and may suffer anguish as decades pass without any
adequate inquiry into the circumstances of the death, particularly where there
are allegations of state involvement in the death (as in the present case), and
of collusion and cover-up. The imposition of delay in the determination of
their claim for damages may cause additional distress. There may be other
factors in individual cases which make the expeditious determination of the
claim particularly important. The present case, for example, illustrates the
importance of expedition where proceedings are brought by claimants who are
elderly or infirm. In striking an appropriate balance between the different
interests at stake, the length of any stay will be of considerable importance.
38.
There is no doubt that there may be cases in which it is proportionate
to impose a stay on a claim for damages in a legacy case, weighing the relevant
factors for and against it. There is equally no doubt that there may be cases
in which, weighing those factors, a stay is not proportionate. Since the relevant
factors can differ in nature and weight from one case to another, it follows
that courts should carry out the necessary balancing exercise in the individual
case. A virtually automatic rule requiring all such claims to be stayed until
after the inquest, regardless of their individual circumstances, would not
comply with that requirement, and in addition, as previously explained, would
result in breaches of the reasonable time requirement of article 6.
The present case
39.
The guidance which the Court of Appeal was understood to have given in
paras 21-23 of its judgment in the present case was not consistent with the
foregoing principles. On its face, it involved no assessment of proportionality
or consideration of individual circumstances. It was also liable to render the
article 2 procedural right ineffective, and to result in breaches of the
reasonable time guarantee. The clarification provided in the case of McCord has,
however, considerably narrowed the apparent scope of that guidance, so as to
confine it to cases where the only outstanding issue is damages and where an
inquest can be expected to begin within the near future, if not already under
way. The court also indicated that the appropriateness of the stay should be
kept under review, and that it should be lifted if the claim for damages will
not otherwise be determined within a reasonable time. Guidance to that effect
is generally consistent with the principles discussed above, although it
remains necessary to allow for the possibility of exceptions in individual
cases.
40.
The foregoing discussion has concerned the general guidance given by the
Court of Appeal in the present case, and the reconsideration of that guidance
in the case of McCord. So far as the present proceedings are concerned,
the decision which is challenged was to stay the claim for damages until the
inquest had been concluded. It has not been argued that the effect of that
decision was to render the claimant’s article 2 right theoretical or illusory,
or that there was a breach of the reasonable time requirement imposed by
article 6. On the other hand, it does not appear from the judgment of the Court
of Appeal that it carried out any assessment of the proportionality of the stay
which it ordered. It is uncertain whether the court would have ordered the stay
if such an assessment had been conducted, particularly if Mr Jordan’s ill
health had been drawn to its attention.
Conclusion
41.
It is impossible not to feel considerable sympathy for the serious
practical difficulties which the courts in Northern Ireland face in dealing
with legacy cases, and which prompted the guidance which was given in the
present case and clarified in the case of McCord. As has been explained,
the guidance as originally given was defective on its face, and the appellant was
entirely justified in bringing this appeal in order to challenge it. The Court
of Appeal has, however, recognised that the terms in which it expressed itself
have caused difficulty, and it has resolved the problem in its McCord judgment,
to which I would only add that it remains necessary to consider whether that
general guidance should be applied in the circumstances of an individual case.
42.
So far as complaint is made about the order made in the present
proceedings, this court would not normally question a case management decision.
The decision in question was however taken without any evident consideration of
its proportionality in the particular circumstances of this case. In addition,
it is uncertain whether the Court of Appeal would have reached the same
decision if the question of proportionality had been considered in the light of
all the relevant facts, including the then claimant’s declining health. In
these circumstances I would allow the appeal.
