GERDA ADELE DOLL-STEINBERG v THE SOCIETY OF LLOYD’S [2002] EWHC 419 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 419 (Admin)Case No Case No: CO/4655/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
GERDA ADELE DOLL-STEINBERGClaimantTHE SOCIETY OF LLOYD’SDefendant
Before
Mr Justice Stanley BurntonCatherine McKenzie Smith (instructed by Beckman & Beckman) for the ClaimantLexa Hilliard (instructed by Freshfields Bruckhaus Deringer) for the DefendantDate 19 March 2002
[1]Mr Justice Stanley Burnton: On 7 March 2002 I heard a renewed application by the Claimant, Mrs Gerda Adele Doll-Steinberg, for permission to apply for judicial review of the decision of the Lloyd’s Settlement Offer Panel (“the Panel”) made in its letter dated 26 September 2001, in effect requiring payment by the Claimant of the sum of £59,300 to Lloyd’s in settlement of her liabilities to it. The Claimant contends that the amount required of her manifestly exceeds the assets available to her to meet her liabilities to Lloyd’s, that in making such an excessive demand as a requirement of settlement the Panel failed to comply with its Terms of Reference, and that she is therefore entitled to have the Panel’s decision set aside.[2]I announced my decision refusing the Claimant permission at the end of the hearing, and stated that I should give my reasons in writing subsequently. I now do so. The Facts[3]The Claimant is a Lloyd’s Name. She is one of the minority of Names who rejected the resettlement offer, known as the Reconstruction and Renewal (“R&R”) offer made to Names in 1996 in relation to their 1992 and prior years’ liabilities. The R&R offer involved the reinsurance of the liabilities of Lloyd’s Names by a new entity, called Equitas Reinsurance Limited (“Equitas”), in consideration of the payment by the Names of a compulsory reinsurance premium. This compulsory reinsurance was effected by Lloyd’s under a new byelaw introduced for the purpose, which authorised the Council to appoint a substitute agent to take over a member’s underwriting business. Its power to do so was upheld by the Court of Appeal in Society of Lloyd’s v Leighs [1997] CLC 1398.[4]The amount of the reinsurance premium payable by the Claimant was £253,100.67. The Claimant did not pay it. On 17 March 1999, Lloyd’s, to whom Equitas had assigned the right to the premium, obtained judgment against her in the sum of £253,100.67. In May 2000 Lloyd’s issued a statutory demand against the Claimant, based on the judgment debt, in the sum of £278,067.04. On 4 September 2001, a bankruptcy order was made against her. The bankruptcy court granted a stay of proceedings in the bankruptcy, pending an appeal of the bankruptcy order.[5]In January 2001, Lloyd’s made a further settlement offer to the Names who had not accepted the R&R settlement offer, and who had not subsequently settled. The offer involved the settlement by Names of their liabilities in respect of 1992 and prior business at a discount to the nominal amount of those liabilities. In addition, Lloyd’s established a special sub-committee (“the Panel”) of the Council of Lloyd’s to whom Names could apply for further assistance, in the form of a reduction in the sum required by Lloyd’s to settle those liabilities. The letter making the offer stated:
“It is important to stress that any application for further assistance under the Settlement Offer will be considered solely on the basis of the Name’s ability to pay the amount required to settle their outstanding liabilities under the Offer.”
Paragraph 21 of the Terms and Conditions of the Offer stated:
“A sub-committee of the Council of Lloyd’s (the Panel) shall be responsible for: (i) the process by which the provision of further assistance will be determined; and (ii) for deciding what, if any, further assistance is to be offered to such Names, any such assistance being based on an assessment of the relevant Name’s ability to pay the Amount Payable to Accept the Offer.”
[6]Lloyd’s required a Name seeking further assistance to complete a pro forma financial statement setting out details of his or her assets, income and commitments and of his or her disposition of assets with a market value of £5,000.00 or more, during the past ten years, stating how the proceeds had been utilised.[7]The Terms of Reference of the Panel stated, at paragraph 2:
“The Panel will set down criteria to be taken into account in assessing Names’ ability to pay their liabilities under the Offer. In setting the criteria the Panel shall take into account such of those factors as it believes to be relevant which were used to assess means related assistance for Names who accepted the R&R settlement offer or who had subsequently settled with Lloyd’s on the basis of their ability to pay, together with any changes in circumstances since R&R. These factors shall include, without limitation and so far as is practical, consideration of the needs of Names for reasonable housing and reasonable minimum income.”
[8]The amount required by Lloyd’s in January 2001 to be paid by the Claimant to settle her relevant liabilities was £101,503.42. The Claimant contended that she was unable to pay that amount. She completed and returned to Lloyd’s the financial statement form. It disclosed net assets of approximately £4,000.00. In addition, it showed that she had sold a quarter share in the property at 17 Holly Walk in Hampstead on 1 August 1995 for £59,300.00. The form stated that the proceeds had been utilised for “general living expenses”. Initially, by letter dated 29 June 2001, the Panel rejected the Claimant’s application for further assistance, considering that “there is evidence that you have sufficient means to satisfy the Amount Payable to Accept the Offer”. In further correspondence, the Claimant disclosed that the purchaser of her interest in 17 Holly Walk had been her husband.[9]By letter dated 26 September 2001, Lloyd’s informed the Claimant that her application for further assistance under the Settlement Offer had been reconsidered by the Panel. The letter stated:
“Having reconsidered your application, including the supporting documentation, the Panel is able to offer you further assistance by reducing the Amount Payable to Accept the Offer to £59,300.00 in order that you may participate in the Settlement Offer.”
The sum of £59,300.00 was, of course, the sum received by the Claimant from her husband for her interest in 17 Holly Walk. The Claimant contends that she is unable to accept the offer based on that determination of the Panel because she has insufficient assets to pay the sum required.[10]The Claimant did not accept the offer. As mentioned above, in consequence, on 4 December 2001, a Bankruptcy Order was made against her; and a stay of proceedings in the bankruptcy was granted pending an appeal of the bankruptcy order. The issues[11]In her proposed amended Statement of Grounds, the Claimant alleged that the Defendant is a public body for the purposes of judicial review. In addition, she alleged that the Defendant, and in particular the Settlement Panel, is amenable to judicial review by virtue of its public functions. She contended that in making its determination the Panel was entitled to have regard only to her then available assets; that in taking into account assets she previously had, and in particular, her interest in the property at 17 Holly Walk, and its sale to her husband, they took into account an irrelevant matter; and that their determination is therefore liable to be quashed. She also alleged that the Panel’s decision was unreasonable, and complained that she was denied her right under Article 6 of the European Convention on Human Rights to a fair hearing before an independent and impartial tribunal, and that Article 13 had also been infringed.[12]Lloyd’s:(1) denied that it is amenable to judicial review in relation to the determinations of its Settlement Panel.(2) denied that it is a public authority or that it exercised any function of a public nature within the meaning of section 6 of the Human Rights Act 1998, and therefore disputed the application of the Convention.(3) denied that, if the Convention applied, the decision of the Panel involved any civil right or obligation within the meaning of Article 6, and disputed the Claimant’s reliance on Article 13.(4) contended that the Claimant lacks interest to apply for judicial review, on the ground that her assets have or will vest in her trustee in bankruptcy, and that those assets include all her causes of action, including her claim to judicial review(5) contended that the application for judicial review, issued on 16 November 2001, was not made “promptly”, as required by CPR Part 54, and that the application should be dismissed on the ground of delay.(6) submitted that permission to amend her claim form, as sought by the Claimant, should be refused, again on the ground of delay.(7) contended that the Panel was entitled to take into account the sale by the Claimant of her interest in the property at 17 Holly Walk and the amount received by her from her husband in respect of it. Jurisdiction[13]The Claimant’s case on jurisdiction suffered from the inconsistency between her original grounds for judicial review, which stated that the Defendant was not alleged to be a public body, and her proposed amended grounds, alleging that Lloyd’s is a public body “for the purposes of judicial review”. However, both the original and the proposed amended grounds alleged that:
“The Defendant, and in particular the Defendant’s Settlement Panel is amenable to judicial review by virtue of its public functions.”
[14]Mrs McKenzie Smith’s contention that Lloyd’s is governed by public law relied principally on the fact that its constitution is, at least in part, statutory, and that “the source of Lloyd’s power is a series of statutes (the Lloyd’s Acts 1871 – 1982). It is a society incorporated under statute. If it were not for the Lloyd’s Acts, Lloyd’s would not exist at all. It follows that its contractual relationship with its members is of secondary importance”.[15]In this connection, Mrs McKenzie Smith relied upon the statement of Lloyd LJ in R v Panel of Takeovers and Mergers ex parte Datafin plc [1987] 1 QB 815, 847:
“I do not agree that the source of the power is the sole test whether a body is subject to judicial review, …. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review…”
[16]The Lloyd’s Acts are Private Acts. I do not think that Lloyd LJ had in mind, in Datafin , Private Acts of Parliament. It has to be remembered that until the mid-nineteenth century, a number of companies were incorporated by Special Act of Parliament or by Royal Charter. Those companies, carrying on businesses such as banking and insurance, had no public law functions. There would be no basis for such companies to be amenable to judicial review by reason only of their statutory incorporation. Quite apart from authority, the same must apply to Lloyd’s.[17]Certain of Lloyd’s functions are public law functions, and amenable to judicial review. In R v Committee of Lloyd’s, ex parte Posgate , reported in the Times, 12 January 1983, the Queen’s Bench Divisional Court, on an application for judicial review of the decision of the Committee of Lloyd’s to suspend Mr Posgate, held that it had had no power to do so. Interestingly, Lloyd’s do not seem to have disputed its amenability to judicial review in that case, which concerned its regulatory and disciplinary functions. However, in a series of subsequent decisions, the Courts have held that the relation of Lloyd’s with its Names, not involving the exercise of regulatory or disciplinary functions, is governed by private law. In R v Lloyd’s of London, ex parte Briggs [1993] 1 Lloyd’s LR 176, a Divisional Court of the Queen’s Bench Division held that the exercise by Lloyd’s of its powers relating to cash calls were the subject of private law, not public law. Leggatt LJ said, at 185:
“It does not help to refer to the respondents as Regulators or to describe the system administered by the Corporation of Lloyd’s as a regulatory regime as is done in the form 86 in these proceedings. The fact is that even if the Corporation of Lloyd’s does perform public functions, for example, for the protection of policy holders, the rights relied on in these proceedings relate exclusively to the contract governing the relationship between Names and their members’ agents and, in some instances, their managing agents. We do not consider that that involves public law. That is consonant with Mr Justice Saville’s conclusion that a Name was not entitled to disregard a cash call made in good faith by the members agents. We accordingly endorse Mr Pollock’s submission that ‘all of the powers which are the subject of complaint in the present application are exercised by Lloyd’s over its members solely by virtue of the contractual agreement of the members of the Society to be bound by the decisions and directions of the Council and those acting on its behalf.’ Lloyd’s is not a public law body which regulates the insurance market. As Mr Pollock remarked, the Department of Trade and Industry does that. Lloyd’s operated within one section of the market. Its powers are derived from a private Act which does not extend to any persons in the insurance business other than those who wish to operate in the section of the market governed by Lloyd’s and who, in order to do so, have to commit themselves by entering into the uniform contract prescribed by Lloyd’s. In our judgment, neither the evidence nor the submissions in this case suggest that there is such a public law element about the relationship between Lloyd’s and the Names as places it within the public domain and so renders it susceptible to judicial review.”
[18]In R v Corporation of Lloyd’s, ex parte Lorimer (unreported, 16 December 1992) Pill J considered an application for leave to apply for judicial review of a decision of the Lloyd’s Members’ Hardship Committee, rejecting the applicant’s application for a Hardship Agreement. The function of the Hardship Committee was described by Pill J as follows:
“The terms of reference of the Hardship Committee emerge … from the explanatory notes which have been exhibited. The purpose of the Committee is set out and it is stated that the Committee’s terms of reference allow it, in appropriate cases, to defer any legal proceedings in respect of recovery action and to enter into an agreement with a Member to spread the payments of losses over a period of time. It provides that the Committee normally allows a Member to remain living in his principal residence provided that that residence is considered by the Committee to be modest. If the residence is considered to be more than modest, then unless the Member moves to a more appropriate address and applies the balance towards the underwriting losses, the Committee is unlikely to assist that member. … the Committee will treat each Member separately and its decision will be based on the Member’s individual circumstances, but any decision will take into account earlier decisions in respect of other applicants to ensure consistency.”
[19]Pill J found it impossible to distinguish the case before him from the decisions in Briggs , and he held that the application to the relationship between the applicant and the Hardship Committee was governed by private law, and that it was unarguable that public law applied.[20]In R v Council of the Society of Lloyd’s, ex parte Johnson (unreported, 16 August 1996) Brooke LJ, sitting as an additional judge of the Queens Bench Division, rejected an application for judicial review of the decision by Lloyd’s to implement its R&R plan. Brooke LJ held that the functions of Lloyd’s in question in that case were not subject to judicial review. He said, at page 66 of the transcript:
“I am certainly willing to accept that in some contexts judicial review may be available even if the relationships in question are founded in contract, if the body whose actions are sought to be reviewed is performing a function that can properly be described as governmental, although the normal rule is that the express or implied terms of the agreement should govern the matter – see de Smith, Woolf and Jowell, op. Cit., at page 170 – but I am quite unable to see how this epithet ‘governmental’ can be ascribed to Lloyd’s relationships with its members. As Mr Scott observed, if the DTI was not satisfied with the Lloyd’s systems of self-regulation, the upshot would not be a situation in which Lloyd’s would become a governmental regulatory authority, or one in which the DTI would regulate the way in which Lloyd’s members were obliged to subscribe funds or to embark on reinsurance of old liabilities. The DTI would continue to be the authorising body, and it would be for it to decide what conditions it should impose on former Lloyd’s underwriters before granting them authority to carry on insurance business if the blanket exemptions for members of Lloyd’s no longer existed. The relevant part of the decision of the Divisional Court in ex parte Briggs formed one of a number of different, equal, grounds on which the court decided that case, and in my judgment it cannot properly be characterised as obiter. Like the Divisional Court in ex parte Aegon Insurance Company Limited I am bound by it, and in my judgment, if the applicants wish to challenge this decision they must go to the Court of Appeal to do so, since the principles it propounds embrace the whole of the relationship between Lloyd’s and Names that fall for consideration in this case.”
[21]Mrs McKenzie Smith sought to escape from the confines of these authorities by submitting that the decisions in question were made per incuriam , and by relying on the doctrine of estoppel. As to the first of these submissions, she submitted that all these decisions were made in ignorance of the statement of Lord Mackay of Clashfern in the House of Lords during the debates on the Lloyd’s Bill, which become, in due course, the Lloyd’s Act 1982. Clause 14 of the Bill, now section 14 of the Act, exempted Lloyd’s from liability and damages to a Member of the Lloyd’s community “in respect of any exercise of or omission to exercise any power, duty or function conferred or imposed by Lloyd’s Acts 1871 – 1982 or any byelaw or regulation made thereunder” relating to the matters set out in paragraphs (a) to (e) of subsection (3), unless the act or omission complained of was done or omitted to be done in bad faith, or occurred in the course of routine or clerical duties not involving the exercise of any discretion. In the course of his speech on 1 April 1982, Lord Mackay said, at column 1530 of Hansard:
“It has been pointed out that it is a very different matter from preventing other people, not Members of the Lloyd’s communities defined in the Bill, from taking court action; for example, policy holders are in no way affected by Clause 14. At the same time, it is right that the authorities’ interpretation of their statutory functions should be open to scrutiny by the court. Judicial review will be available as a remedy for oppressive or unfair acts, and nothing in the Bill affects that. Compliance with all the requirements of natural justice will be necessary. In our view of the matter, it is quite wrong to suggest that the Bill would put Lloyd’s above the law. As we see it, Lloyd’s will not be placed above the law. I therefore do not think it unreasonable that the finality of Lloyd’s decisions should have the limited degree of protection provided in the Bill, and your Lordships will notice – this perhaps in relation to the way in which the point was put by the noble Lord, Lord Airedale – that the protection of Clause 14 relates to the exercise of powers conferred by the statutory constitution. … Moreover, I see important practical benefits in that protection. Lloyd’s will have a difficult path to tread in exercising their powers of disciplinary control. If they take action, they may be resisted by those affected by the action. If they do not take action, they may be attacked by others, perhaps external members, whose interests may be affected. It is not easy to take the right regulatory decision every time, and even less easy to take it precisely at the right moment. A judgment has been made between excessive intervention and commercial decisions and the maintenance of proper standards. If the principle of self-regulation is to be maintained, the regulators may reasonably expect a degree of protection in taking these judgments. They are likely to make better decisions if they are free from the risk of an action for damages.”
[22]Mrs McKenzie Smith submitted that the Court should have recourse to the speech of Lord Mackay under the principle in Pepper v Hart [1993] AC 593 ; and that the decisions to which I have referred above were taken in ignorance of that speech. She submitted that in consequence, the decision of the Divisional Court in Briggs , which would otherwise be binding on me, is not; and that Lord Mackay’s speech made it clear that Lloyd’s was to be subject to judicial review.[23]Mrs Mackenzie Smith’s brave submissions on this point fail for a number of reasons. First, Lord Mackay’s speech, if admissible as an aid to the construction of the Lloyd’s Act 1982, would not justify a departure by a court of equal authority to a Divisional Court from a previous decision of that Court. A Parliamentary speech is not binding on a court considering the legislation to which it relates. In Morrelle Ltd v Wakeling [1955] 2 QB 389, Lord Evershed MR said, at 406:
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene M.R., of the rarest occurrence.”
[24]Secondly, the per incuriam principle only applies to decisions of courts of equal authority. It is not for a first instance judge, in general, to decide that a decision of a Divisional Court, otherwise binding on him, was made per incuriam . The remedy of a party who argues that a previous decision of a Divisional Court was decided per incuriam is to appeal the decision of the judge at first instance to the Court of Appeal. Thirdly, the speech of Lord Mackay does not satisfy the requirements of the principle in Pepper v Hart . In that case, Lord Browne-Wilkinson said, at [1993] AC 593 , 640:
“I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.”
[25]The majority of the House of Lords agreed with this statement. Ironically, Lord Mackay of Clashfern L.C. was the dissenter. Lord Mackay’s speech on the Lloyd’s Bill satisfies neither requirement (a) nor (b). As to (a), the Claimant’s submission is not that the Lloyd’s Act is ambiguous or obscure or leads to absurdity: her submission relates to the consequences of the Lloyd’s Act on judicial review and the application of the Human Rights Act. In addition, the particular legislation referred to by Lord Mackay was Section 14 of the 1982 Act. Section 14 is confined to the functions referred to in subsection (3). None of those functions was concerned in the present case. Thirdly, although Lord Mackay was a Minister when he made the speech, he was not the promoter of the Bill. The promoter of the Bill was Lord Windlesham. In my judgment, as is clear from the use of the words “ other promoter of the Bill” in Lord Browne-Wilkinson’s speech, the principle in Pepper v Hart does not apply to a speech made by a Minister who is not the promoter of the Bill on which he speaks. The reason is obvious: a Minister speaking on a Bill which is not promoted by his department may not be in possession of the briefing provided by the department in question. The exclusion of speeches other than by the ministerial promoter of a bill is even more obviously appropriate where, as in the present case, the bill is a Private Bill.[26]As mentioned above, Mrs McKenzie Smith also sought to rely on the principle of estoppel, and referred to a letter from Peter Green, the Chairman of Lloyd’s, dated 10 February 1982, enclosing a memorandum on the Lloyd’s Bill which stated that members of the Lloyd’s community who became the object of disciplinary action by a future Council of Lloyd’s would have adequate legal remedies, by way of application to the courts for judicial review. The letter and memorandum do not assist the Claimant for two reasons: first, the memorandum refers to disciplinary action, and this case is not concerned with such action; and secondly, and more fundamentally, the jurisdiction of the court on judicial review cannot be created by the agreement of private parties or by estoppel. What is, or is not, “a decision, action or failure to act in relation to the exercise of a public function” within the meaning of part 54.1(2)(a) of the Civil Procedure Rules is to be determined objectively by the court, and cannot depend on actions by ex hypothesi private parties to extend the jurisdiction to the exercise of ex hypothesi private functions.[27]I am bound by the decision of the Divisional Court in Briggs . The decision of Pill J in Lorimer is of persuasive authority. I am unable to distinguish the function of the Panel which is the subject of the present proceedings from the functions considered in Briggs , and even more obviously Lorimer . Indeed, quite apart from these authorities, I should have held that the function of the Panel is a private law function, and not a public function. The indebtedness of the Claimant is a private law indebtedness: it relates to a reinsurance premium which she has been held liable to pay. The fact that the Claimant’s liability may have involved the exercise of powers conferred by statute does not affect the intrinsic nature of that liability. The function of the Panel is to consider the acceptance by Lloyd’s of a lesser sum in settlement of that private law liability. I see no public law function involved in its decisions.[28]For these reasons, in my judgment it is unarguable that the decision of the Panel in relation to the Claimant is amenable to judicial review.[29]I would add that Mrs McKenzie Smith sought to rely on the decision of Carnwath J in McAllister v Lloyd’s , unreported, 2 December 1998. In that case Carnwath J held that even if Lloyd’s is not a public body susceptible to judicial review, the fact that it was performing functions in the public interest, within a statutory framework, imposed some limitation on their freedom of action, analogous to Wednesbury principles. Carnwath J’s judgment concerned the implied obligations that might be owed by Lloyd’s in the exercise of a private law function, and has no bearing on amenability to judicial review. The European Convention on Human Rights[30]It follows from the decision of the Divisional Court in Briggs , and my above conclusion, that Lloyd’s is not a public authority within the meaning of Section 6(1) of the Human Rights Act 1988, and that the Panel does not have a function of a public nature within the meaning of Section 6(3)(b). Accordingly, Section 6(1) does not have the effect of making it unlawful for the Panel to act in a way which is incompatible with Convention rights. In any event, however, it is clear that in making its decision the Panel did not determine any civil right or obligation of the Claimant. The Claimant’s civil rights and obligations had already been determined by the court judgment dated 17 March 1999. The exercise by the Panel, on behalf of Lloyd’s, of a discretion, effectively by way of concession, to accept a lesser sum in payment of the judgment debt was not the subject of Article 6. In general, Article 6 applies to rights and obligations, and not to the exercise of a discretion and the grant of discretionary rights: see Husain [2001] EWHC Admin 852 at paragraphs [26] and [27], and Begum v London Borough of Tower Hamlets [2002] EWCA Civ 239 at paragraph [23]. Article 13 of the Convention has not been incorporated into English law, and I need say no more about it. Other Points[31]For the above reasons, the claim for judicial review is unarguable. I add that, if the court had jurisdiction, I should not have refused permission on the grounds of delay or on the ground of the lack of standing of the Claimant. So far as standing is concerned, if these proceedings could have been successful, the result might have been a determination of the Panel to accept from the Claimant a sum of money which she could pay. If so, her bankruptcy order could be set aside. I should be reluctant to deny standing to a Claimant who, if successful in her proceedings, might be able to set aside her bankruptcy. However, I do not think that the Claimant has an arguable case on the merits. It is clear from paragraph 2 of the Terms of Reference of the Panel, and the information required in the financial statement, that the Panel was entitled to take into account past dispositions of assets by the Claimant. Indeed, it would be extraordinary if this were not the case. It would mean that the Panel would, for example, have to ignore a disposition by a wife to her husband of substantial assets at an under value, made with a view to avoiding those assets being used to meet liabilities to Lloyd’s. It has not been suggested before me that any such thing happened in this case. Nonetheless, Lloyd’s would have been guilty of gross naivety if it had not taken such possibilities into account in formulating its most recent settlement scheme and in arranging for the work of the Panel.[32]In view of my decision, it is unnecessary to consider formally the application of the Claimant for permission to amend her Claim Form. In arriving at my decision, I have considered the allegations contained in the proposed amendment. They do not take the Claimant’s case any further.[33]Finally, in the course of her submissions Miss Hilliard, for Lloyd’s, suggested that if I held that Lloyd’s was amenable to judicial review, and granted the Claimant permission to apply for judicial review, it would be open to Lloyd’s to re-argue that issue on the substantive hearing. The hearing of this application for permission took a full day. Lloyd’s was able to put before the Court all relevant authorities and material and all relevant evidence. There is no reason for the Court in such circumstances not to make, not merely a provisional decision, but a substantive decision, on jurisdiction. If the Court does so, it seems to me that it would be regrettable and wasteful if the question of jurisdiction could be re-argued at the substantive stage. Miss Hilliard referred to the fact that in a number of the authorities the decision that the Court lacked jurisdiction was made after permission had been granted. Those cases pre-dated the reform of judicial review procedure following the Bowman report. The decision of the Court to grant permission was formerly made without notice to the defendant; it is now made on notice, as this case exemplifies. I do not have to decide the point, but I do say that a party may not assume that a decision on jurisdiction, made after full argument at the permission stage, may be re-argued at the substantive hearing. The position may be akin to the grant at the permission stage of an extension of time to apply for judicial review: c.f. R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330 .

Cited in 2 later judgments