YOU APPEAL DECISIONS NOT REASONS: PERMISSION TO APPEAL REFUSED IN RELATION TO AN ARGUMENT THAT DID NOT CHANGE OUTCOME OF THE CASE

In  Civilians v Ministry of Defence [2018] EWHC 690 (QB) Mr Justice Leggatt  rejected the defendant’s application for permission to appeal. The proposed appeal was wholly academic in the sense that it had no impact on the outcome of the case.

THE CASE

The claimants had been successful in relation to a claim for damages under the Human Rights Act.  The defendant sought permission to appeal, not on the Human Rights Act issue, but in relation to a finding in relation to a finding made about “Crown Act of State”.

THE JUDGMENT

1. On 14 December 2017 I handed down a long judgment giving the reasons for my decisions in the four cases which have been tried as lead cases in this litigation. On the same day an order was made in terms agreed between the parties recording the decisions. In each case judgment was entered for the claimant for a sum of damages. The claimants have not applied for permission to appeal from any of the decisions, nor has the defendant. However, the defendant has applied for permission to appeal from certain conclusions reached in the judgment about the application of the doctrine known as Crown act of state.

2. I mean no discourtesy to the defendant’s representatives in expressing my view that this application suffers from a fundamental flaw. Under section 16 of the Senior Courts Act 1981, the Court of Appeal has jurisdiction to hear and determine appeals from any judgment or order of the High Court. However, the defendant is not seeking to appeal from the court’s judgment or order in these cases. The term “judgment” in section 16 refers to a final order made by the court after a trial and not to a judgment in the wider sense of a document which gives the reasons for the court’s order.

3. The defendant recognises that, if the conclusions on the question of Crown act of state which it wishes to challenge were found to be wrong, that would have no effect on the judgment or order of the court in any of the four cases. That is because Crown act of state was relied on by the defendant as a defence to the claims made by the claimants in tort, and those claims were all entirely defeated in any event, as they were held to be time barred. The claims on which each claimant succeeded and obtained a judgment for damages were claims under the Human Rights Act, to which it is common ground that the doctrine of Crown act of state does not apply. As the appeal which the defendant seeks permission to bring is therefore not an appeal from any judgment or order of the court, the Court of Appeal would have no jurisdiction to hear it.

4. The defendant’s response to that fatal objection is to ask the court to vary the order of 14 December 2017 so as to include in the order a declaration as to the parties’ rights in respect of the defence of Crown act of state from which the defendant could then seek to appeal. It was submitted that the court has power to make such a declaration pursuant to CPR rule 40.20 which is headed “Declaratory judgments” and provides that “The court may make binding declarations whether or not any other remedy is claimed.”

5. I am not persuaded that the court does have power to give a declaratory judgment after the order containing the judgment has been sealed. It is impossible to say that the non-inclusion in the order of a declaration on the question of Crown act of state was an accidental slip or omission which can therefore be corrected under CPR 40.12, the slip rule. Nor does the case fall within the range of circumstances in which it is appropriate to exercise the power of the court under CPR 3.17 to vary a final order. As summarised by Rix LJ in the case of Tibbles v SIG Plc [2012] EWCA Civ 518 at paragraph 39, the primary circumstances in which the power under CPR 3.17 may in principle appropriately be exercised are: (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were innocently or otherwise mis-stated. Neither of those circumstances applies here. Nor is there any other extraordinary circumstance which could justify invoking the power such as a manifest mistake in the formulation of the order.

6. Even if, contrary to my view, the court could in principle now vary the order of 14 December 2017, I do not think it would be right to do so. In my view, there is no good reason to make the declaration now sought by the defendant, and if the defendant had asked for such a declaration to be included in the order when it was being drawn up, I would have refused that request. That is first of all because the defendant has never made any claim in these proceedings for declaratory relief. There is no counterclaim in any of these cases seeking any declaration and not once was it ever suggested in argument in the course of the proceedings that any declaration was being sought. The first time when that suggestion was put forward was after the judgment had been given.

7. In the second place, these are not cases in which a declaration is, in my opinion, an appropriate remedy. The claims have not been brought to establish rights of the parties for the purpose of regulating dealings between them or establishing some point of principle for the future. These are personal injury claims brought by the claimants to recover monetary compensation for injuries allegedly caused to them by unlawful acts of the defendant. In particular, the Crown act of state defence, as I have indicated, related exclusively to the claims for damages in tort. True it is that the claimants raised a considerable number of interesting and difficult points of law, but that is not a sufficient reason to make views expressed by the court on any of those points the subject of a declaratory judgment – all the more so when the view taken on the point in question made no difference to the outcome of the case. The only reason which the defendant has for asking the court to make a declaration is to enable it to bring an appeal. But that is to put the cart before the horse.

8. Looking at the matter more broadly, permitting the defendant to appeal on the question of Crown act of state, even if the court had power to do so, would, in my view, waste the time of the Court of Appeal and be unjust to the claimants. There is no reason why they should have to bear the costs of arguing a point on appeal which would not alter the outcome of the cases, however the point was decided. Nor can I see how, if there is no appeal, the defendant will be prejudiced.

9. It is said by counsel for the defendant that the same point may arise in some other cases where the claim in tort was brought in time, including the cases of HTF and ZMS which are currently pending. The point will only, in fact, arise in those cases if it is found that the claimant’s detention violated article 5 of the European Convention, which the defendant disputes. But if such a finding is made, and if the judge reaches the same conclusion as I have reached on Crown act of state, then that will be the appropriate occasion for an appeal. There is no warrant for any appeal in the present cases where the point is entirely academic. The defendant’s application for permission to appeal is therefore misconceived and permission must be refused.”