DENTON APPLIED TO LATE APPEAL: SUBMITTING SUBMISSIONS AFTER A HEARING AND THE NEED FOR CAUTION WHEN SEEKING DAMAGES UNDER THE HUMAN RIGHTS ACT

In Fayad, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 54 the Court of Appeal applied the Denton principles to a late appeal.  Permission to appeal was refused. Mr Justice Singh had some stringent observations about the practice of “throwing in” a claim for damages under the Human Rights Act in an an application for judicial review.

“In my view, this reflects an unfortunate culture which has developed in this area of legal practice. Too often claims for damages, in particular claims under the HRA, are thrown in at the end of a claim form, apparently as an afterthought and frequently as a makeweight. If I am right to detect that such a culture has developed, it is firmly to be discouraged. Courts and tribunals should be astute to require that claims for damages in judicial review proceedings are properly raised and pleaded. If they are not, they should be prepared to use the full range of their powers to ensure that they are. In appropriate cases this may have consequences in costs”

KEY POINTS

  • Denton applied to applications to appeal out of time. There was no good reason for the delay in this case.  The application to appeal out of time was refused.
  • It was inappropriate for solicitors to file additional material and submissions after an appeal had concluded.
  • A claim for damages under the Human Rights Act in judicial review proceedings should be made rarely. When made the basis for the claim should be properly particularised.

THE CASE

The appellant was appealing an order of a Master in relation to costs.  The appropriate method was to ask for a review. The appellant appealed, considerably out of time.

THE JUDGMENT ON THE LATE APPEAL AND DENTON PRINCIPLES

    1. There is no right of appeal against a decision made by a Master under CPR rule 52.24(1); but, by rule 52.24(5), a party may request that such a decision be reviewed by a single judge of the Court of Appeal. The rule prescribes that any review shall be on the papers, unless the single judge considers that the matter cannot be fairly determined without an oral hearing. I pause to emphasise that this right is entirely distinct from the right under CPR rule 52.24(6) to have a decision by a single judge on the papers reconsidered by the same, or another, judge; although, since rule changes made in October 2016, a reconsideration under this provision is also to be done on the papers unless the judge considers that the matter cannot be fairly determined without an oral hearing. Prior to October 2016, a party had the right to a reconsideration at an oral hearing.

    2. Returning to rule 52.24(5), any request for review must be filed within seven days after the party is served with notice of the Master’s decision (rule 52.24(7)). Such a review will be determined on paper without an oral hearing, except that the single judge may direct that the review be determined at an oral hearing and must do so if of the opinion that the review cannot be fairly determined on paper without an oral hearing (rule 52.24(5)). Where a single judge does determine the review on the papers, there is an express exclusion of the right to a reconsideration of that decision under rule 52.24(6). A single judge may refer the review to a court of two or more judges (rule 52.24(8)). Section 58(2) of the Senior Courts Act 1981 provides that no appeal to the Supreme Court lies from decisions of the Court of Appeal taken by a court officer, or indeed by a single judge.

    3. On 18 October 2017, the Appellant purported to apply for permission to appeal the order of Master Bancroft-Rimmer’s decision of 16 August 2017. Given that there is no right of appeal, that was treated as an out-of-time application for a rule 52.24(5) review; and, indeed, the “application for permission to appeal” was accompanied by an application for an extension of time for review under rule 52.24(6). That application was made on the basis that, taking into account the criteria for granting relief from sanctions set out by this court in Sayers v Clarke Walker [2002] EWCA Civ 645[2002] 1 WLR 3095, it would be in the interests of justice and would further the overriding objective retrospectively to extend time. The only substantive ground of challenge to the Master’s decision is that it is legally irrational.

    4. The Secretary of State submits in response that:

i) On the basis of the current approach to such matters as set out in Denton v T H White Limited [2014] EWCA Civ 906[2014] 1 WLR 3926, the court should not extend time to allow the application to proceed.

ii) The parties having agreed that the Master should determine the issue of costs below on the papers, applying RS (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 114, the court now lacks jurisdiction to re-open matters.

iii) In any event, the Master’s decision is not irrational. On the contrary, it is well within the range of decisions open to her to make.

Given the jurisdictional issue raised, I directed the matter be adjourned into open court, and referred the matter to a constitution of two judges.

    1. The Secretary of State’s submissions helpfully identify the three issues before the court. I will deal with them in turn; but, before I do, I should briefly refer to RS (Sri Lanka). As I have indicated, at the relevant time, CPR rule 52.24(6) was differently worded: it gave a party dissatisfied with a decision made by a judge on the papers a right to have the matter reconsidered at an oral hearing (cf the wording since October 2016, which still gives a right to reconsideration, but that is to be done on the papers unless the single judge considers that the matter cannot be fairly determined without an oral hearing: see paragraph 16 above). RS (Sri Lanka) concerned an appeal to this court, which was compromised on the basis of an agreement between the parties, encapsulated in a consent order, that “the matter of costs to be determined by a judge on the papers…”. Following written submissions, Sullivan LJ made an order that there be no order for costs as between the parties. One party applied for a reconsideration under CPR rule 52.24(6), Sullivan LJ’s decision having been made without a hearing. This court (Maurice Kay and Thomas LJJ) held that the agreement of the parties that costs would be determined on the papers, objectively construed, meant that they were content for a judge to determine the issue of costs “without the possibility of further recourse to the court…. By an agreement in those terms the parties are putting their trust in the judge to produce a binding decision as to where the costs should fall” (at [8] per Maurice Kay LJ). Therefore, the court had no jurisdiction to reconsider the decision of Sullivan LJ at an oral hearing.

    2. Turning to the three issues before the court now, first, there is the question of delay. In Denton, this court identified three stages in the consideration of an application for relief from sanctions, namely:

i) The court must identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order engaging CPR rule 3.9(1). If the breach was not serious or significant, it is likely that relief will be granted by the court, and it is unlikely that it will be necessary to investigate stages (ii) and (iii) in any depth.

ii) The court must identify and consider the reasons why the default occurred.

iii) To enable the application to be dealt with justly, the court must evaluate all the circumstances of the case, including the need to enforce compliance with rules etc and the need for litigation to be conducted efficiently and at proportionate costs.

    1. In Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633[2015] 1 WLR 2472, this court applied the same approach to applications for extensions of time for permission to appeal. By analogy, the same principles are applicable to an application for an extension of time for review of a decision under CPR rule 52.24(7). With respect to Mr Dolan’s reference to Sayers v Clarke Walker, pre-Denton authorities on the proper approach to applications for relief from sanctions and extensions of time have been overtaken by the recent authorities and are unhelpful; and reliance should not now be placed upon them. The approach to be adopted is that set out in Denton.

    2. CPR rule 52.24(7) requires an application to review a Master’s decision to be made within seven days of service of the decision of which compliant is made. Master Bancroft-Rimmer’s decision is dated 16 August 2017 and so, if posted that day, would have been served on 18 August 2017. The application ought to have been filed on or before 25 August 2017. It was in fact filed on 10 October 2017, 53 days after service of the order and 46 days late.

    3. The application for an extension unfortunately does not focus on the approach in Denton, and therefore does not address the specific issue of whether the delay in this case was “serious” and/or “significant”. In my view, it is clearly “serious”, and probably also “significant”. A delay of 46 days on a time limit of seven days requires some explanation.

    4. Two explanations are offered in the application. First, it is said that the Appellant was substantially prejudiced “by the non-disclosure and non-compliance on the part of the [Secretary of State]”. However, if and insofar as that is true, that does nothing to explain why the application for review was late.

    5. Second, it is said the Applicant sought to request reconsideration earlier, but was informed that RS (Sri Lanka) meant the court had no jurisdiction to reconsider the Master’s decision. No evidence is submitted in support of that assertion; but in any event, taking it at face value, it does not assist the Appellant. If he had applied to the court for the Master’s decision made on the papers to be reconsidered at an oral hearing under CPR rule 52.24(6), then, leaving aside RS (Sri Lanka), that provision does not apply to the decisions of Masters. But the Appellant did not in the event apply for reconsideration, but review by a judge under CPR rule 52.24(5). No explanation is suggested in the documents as to why that application was not made on time, or earlier than it was. At the hearing before us, Mr Dolan accepted responsibility for the delay: he said it resulted from uncertainty about the appropriate course to challenge the Master’s decision, which was compounded by the message from the Civil Appeals Office to the effect that the court had no jurisdiction to entertain a reconsideration. However, there is no evidence to that effect; and, if the decision to challenge the Master’s order was taken within seven days, it is difficult to see why a further 46 days were required to work out that the appropriate route was CPR rule 52.24(5). The Appellant was throughout legally represented.

    6. Moving to the third stage of Denton, in considering where justice lies – and, for the moment, proceeding on the basis that this court does have jurisdiction to deal with the review application – the absence of any evidenced explanation for a serious and significant failure to comply with the time limit for making an application for review weighs heavily against granting an extension of time. Furthermore, the Secretary of State has been prejudiced by the delay: reasonably considering that the Master’s costs order was final, she has proceeded to refer the matter to costs consultants so that the order for costs in her favour can be progressed. The Appellant complains about the previous delays of the Secretary of State in progressing the appeal; but these are not to the point, because the Secretary of State has agreed to pay the Appellant’s costs of the appeal. We are concerned with the costs below. There is no issue of principle involved here: the Appellant simply considers that, on the basis of well-established costs jurisprudence, the Master’s decision was wrong.

    7. Finality of judicial decisions is an important principle. In the absence of any good reason for the serious and significant delay in filing the application for reconsideration – and, in my view, the Appellant has advanced no good reason – I consider the appropriate and just course is not to exercise the court’s discretion to extend time.

 

EXTRA MATERIAL AFTER THE HEARING

There was a surprising development after the hearing.

“after the hearing, the Appellant’s solicitors lodged several pages of further written submissions with extensive “exhibits”. The Appellant was represented by Counsel at the hearing. All the post-hearing written submissions could have been made at the hearing, which was the proper opportunity to make them. Leaving aside the fact that, in my view, these submissions do not materially add to those made before us, it is entirely inappropriate for a party to make further unsolicited written submissions after a hearing, absent very good reason. There was no good reason here for seeking to reopen the debate on the issue before us, in the manner the Appellant’s solicitors sought to do.”

THE MAKEWEIGHT CLAIM FOR DAMAGES UNDER THE HUMAN RIGHTS ACT

Mr Justice Singh also made important observations about claims for damages under the Human Rights Act.

    1. I would like to add a few observations on one point in the hope that this may be of assistance in other cases. This relates to the inclusion at some point in this claim for judicial review of a claim for damages, in particular a claim for damages under the Human Rights Act 1998 (“HRA”).

    2. The ability of the court to award damages in claims for judicial review is an important part of its remedial powers in order to do full justice in cases in which a public authority has acted unlawfully. The old “forms of action” have long disappeared. It was in order to give the court sufficient flexibility that, when RSC Order 53 was amended in the late 1970s and primary legislation was introduced in 1981 to govern what became “an application for judicial review”, it was made clear that a claim for damages could be included in judicial review proceedings.

    3. The present position is governed by section 31(4) of the Senior Courts Act 1981 and by CPR Rule 54.3(2), which provides that:

“A claim for judicial review may include a claim for damages, restitution or the recovery of a sum due but may not seek such a remedy alone.”

    1. What these provisions govern is the procedure for making a claim for damages, not substantive law. They ensure that the Court has sufficient flexibility to consider a claim for damages in the same proceedings in which it is considering public law remedies such as a quashing order. However, what these procedural provisions do not do is say anything about substantive law. In particular they do not create a cause of action for damages where none would otherwise exist.

    2. In order to know whether there is a proper cause of action for damages in a claim for judicial review one still has to go to some other source of substantive law. It may be, for example, that there is a cause of action in negligence; trespass to goods or the person; or for breach of statutory duty. However, the fact that such a cause of action can in principle arise (as a matter of procedure) in a claim for judicial review should not mean that the usual principles for making such a claim do not apply. The claim should be properly pleaded and particularised.

    3. One of the sources of substantive law which may, in an appropriate case, create a cause of action for which damages may be available is the HRA. In a case in which a public authority acts unlawfully under section 6(1) of the HRA, Parliament has made it clear that the court “may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate”: see section 8(1). However, subsection (2) expressly provides that:

“damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings”.

    1. Further, subsection (3) provides that:

“No award of damages is to be made unless, taking account of all the circumstances of the case, including –

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.”

    1. Subsection (4) provides that:

“In determining –

(a) whether to award damages, or

(b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.”

  1. It should be noted that, in section 8, “court” includes a tribunal: see subsection (6).

  2. In appropriate cases this power to award damages for breach of the HRA is important in order for the court to ensure that “just satisfaction” (to use the terminology of the Convention itself, which is reflected in section 8(3)) is afforded to a person whose fundamental human rights are breached by a public authority. However, this important provision must not be abused.

  3. In particular claims for judicial review which include a claim for damages for breach of the HRA should be properly pleaded and particularised. They should set out, at least in brief, “the principles applied by the European Court of Human Rights” under Article 41 of the Convention which are said to be relevant. I note that, in the present case, the Claimant at one time claimed damages for loss of earnings and for “humiliation and distress”. No explanation was given as to the principles applicable under Article 41 would govern such heads of loss: cf., for example, Scorey and Eicke, Human Rights Damages: Principles and Practice, ch. 2.

  4. During the course of the hearing before us Mr Dolan appeared to suggest that it was immaterial that the claim for judicial review had, at least at some stage, included a claim for damages under the HRA. He submitted that the Appellant had nonetheless obtained in substance what his claim for judicial review had sought.

  5. In my view, this reflects an unfortunate culture which has developed in this area of legal practice. Too often claims for damages, in particular claims under the HRA, are thrown in at the end of a claim form, apparently as an afterthought and frequently as a makeweight. If I am right to detect that such a culture has developed, it is firmly to be discouraged. Courts and tribunals should be astute to require that claims for damages in judicial review proceedings are properly raised and pleaded. If they are not, they should be prepared to use the full range of their powers to ensure that they are. In appropriate cases this may have consequences in costs.