Rose Gentle & Ors, R (on the application of) v The Prime Minister & Ors [2005] EWHC 3119 (Admin)

Case No CO/6097/2005[2005] EWHC 3119 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 20th December 2005
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF ROSE GENTLE AND OTHERSClaimant-v-
Between
THE PRIME MINISTERDefendantTHE SECRETARY OF STATE FOR DEFENCEDefendantTHE ATTORNEY GENERALDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R SINGH QC (SUBMISSIONS) AND MS C KILROY (instructed by PUBLIC INTEREST LAWYERS) appeared for CLAIMANTSMR P SALES (SUBMISSIONS) AND MS J STRATFORD (instructed by TREASURY SOLICITORS) appeared for DEFENDANTS
J U D G M E N TTuesday, 20th December 2005
[1]MR JUSTICE COLLINS: This is an application for permission to claim judicial review of the refusal to hold an inquiry into the circumstances which led to the invasion of Iraq. I should say that I propose to refuse to grant permission for the reasons that I shall now give.[2]The six claimants are all close relatives of British servicemen who were killed in Iraq when serving with forces there between 20th March 2003, when the United States-led invasion commenced, and 28th June 2004 when the administration of Iraq was transferred to an interim Iraqi government. They seek a mandatory order requiring the defendants, that is to say the Prime Minister, the Secretary of State for Defence and the Attorney General, to establish an independent inquiry to examine all the circumstances of their deaths, including whether the decision to use force against Iraq was lawful. It is this aspect of an inquiry which lies behind the claim.[3]It is important that I make clear at the outset of this judgment that I am concerned only to decide whether the claim is arguable. Nothing that I say must be taken as an indication that I have decided that any particular aspect of this claim, were I to allow it to proceed, has been established. I am merely deciding whether the claim or any aspect of it is arguable.[4]The threshold for deciding on arguability is a relatively low one. However the fact that it has been persuasively argued over a full day's hearing does not mean that it crosses that threshold. As would be expected, Mr Rabinder Singh's arguments have been attractive, but arguable does not mean that a claim can be the subject of apparently well-reasoned argument. It is only if those arguments show that there is a real prospect that the claim will succeed that an arguable case is established. The test is, in reality, no different from that applied by the Court of Appeal in deciding whether to grant permission to appeal. It would be pointless to grant permission for a full and costly hearing which, however attractive the arguments deployed, had no real chance of success.[5]The six deceased were killed in different circumstances. Two were involved in accidents, one a helicopter crash, the other a road traffic accident. One was killed by so-called friendly fire and the remaining three as a result of roadside bombs planted by insurgents. Four had been stationed in the United Kingdom and two in Germany before being sent to Iraq. Their relatives claim that none of them would have been in Iraq and so able to be killed but for the decision to send troops to support the United States-led invasion.[6]That invasion may have been unlawful, but insufficient information at present exists to enable it to be known whether or not it was. But there is material, some of which has been placed in the public domain as a result of apparent leaks, which raises serious questions about its lawfulness. Those questions can only be answered if there is a proper independent inquiry.[7]Since this judgment concerns whether or not permission should be granted, it is neither necessary nor desirable to go into great detail, but I should, because I am conscious of the importance of the issue and the great public concern that it has aroused, set out, at least in outline, the material circumstances upon which reliance has been placed.[8]There is, it is said, material in the form of leaked memoranda which suggests that, as early as March 2002, it had been decided that a United States-led invasion of Iraq should be supported and the motive behind this was a desire for regime change. Since the regime led by Saddam Hussein was believed to be flouting the United Nations Resolutions, and possibly to be engaged in producing weapons of mass destruction, it is difficult to see that there is anything necessarily sinister in any reference to regime change. If an invasion was justified because the regime was involved in terrorism or otherwise in breaking the United Nations Resolutions, then it would follow that that regime would need to be changed.[9]The key question, as it seems to me, is whether the invasion could lawfully take place in the absence of a further United Nations resolution positively permitting it. In a lengthy advice, dated 7th March 2003, the Attorney General set out the arguments and the history of the manner in which the United Nations had dealt with the problem. He concluded that resolution 1441 left the position unclear, but he summarised the position in these terms. I cite paragraph 27 onwards of his opinion:
"In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. I have already advised that I do not believe that such a resolution need be explicit in its terms. The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled. "
Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution. "However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity. "In reaching my conclusions, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a 'reasonable case' does not mean that if the matter ever came before a court I would be confident that the court would agree with this view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained. However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing like as great as it is today."[10]Ten days later, on 17th March 2003, the Attorney General gave to the House of Lords a written answer on the legality of hostilities against Iraq. This, so far as material, stated as follows:
"1. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area. "2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under resolution 678. "3. A material breach of resolution 687 revives the authority to use force under resolution 678. "4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution. "5. The Security Council in resolution 1441 gave Iraq 'a final opportunity to comply with its disarmament obligations' and warned Iraq of the 'serious consequences' if it did not. "6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach. "7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach. "8. Thus, the authority to use force under resolution 678 has revived and so continues today. "9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. "
Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force."[11]That was an issue which was discussed at length in the advice that was given ten days earlier. It is said that the written answer of 17th March is inconsistent with the advice ten days earlier. The question is what, if anything, happened in the intervening period to enable the Attorney General to be positive when he had before been doubtful.[12]The answer to that is that the Attorney General may well have changed his approach and had been satisfied, notwithstanding his reservations, that resolution 1441 did provide the necessary power to invade, in the sense that it was not necessary for there to be a further resolution by the Security Council to use force provided that Iraq had failed to comply with the previous resolutions. It may well be, also, that he received further information which enabled him to be satisfied that there was hard evidence to support the failure to comply and thus to justify the use of force. It seems to me that the suggested basis for requiring some information as to what had changed in the meantime is exceedingly shaky in the circumstances.[13]This claim is based on the obligations which are said to arise under Article 2 of the European Convention on Human Rights, that being the Article which covers the protection of life. Putting it broadly, it is claimed that where a death occurs in circumstances which show that the United Kingdom has jurisdiction, there is an obligation to hold an inquiry into the death in order, inter alia, to establish whether that death occurred because of some unlawful conduct for which the state was responsible. This is because Article 2 requires not only that a state should refrain from the intentional and unlawful taking of life, but should also take appropriate steps to safeguard the lives of those within its jurisdiction. Thus, the important starting point is whether it is arguable the deaths were, in terms of Article 1 of the Convention, within the jurisdiction of the United Kingdom.[14]Mr Sales has argued that the decision of the European Court of Human Rights in Bankovic v Belgium [2001] 11 BHRC 435 establishes that decisions on military action abroad are not subject to review under the Convention. Bankovic was a claim made by an injured, and a number of relatives of some killed, in the destruction of a radio station during the NATO action against the Federal Republic of Yugoslavia resulting from its activities in Kosovo. It is to be noted, in paragraph 36 of the judgment in Bankovic, the submissions of the governments, including the government of the United Kingdom who were respondents to the application, were as follows:
"As to the precise meaning of 'jurisdiction', they suggest that it should be interpreted in accordance with the ordinary and well-established meaning of that term in public international law. The exercise of 'jurisdiction' therefore involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or who have been brought within that state's control. They also suggest that the term 'jurisdiction' generally entails some form of structured relationship normally existing over a period of time."
[15]At paragraph 59 onwards the court deals with the question of jurisdiction. That was because Article 1 of the Convention applies the Convention to those within the jurisdiction of the state in question. I think it is probably necessary for me to read the relevant paragraphs 59 to 63:
"59. As to the 'ordinary meaning' of the relevant term in art 1 of the convention, the court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law does not exclude a state's exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states... "60. Accordingly, for example, a state's competence to exercise jurisdiction over its own nationals abroad is subordinate to that state's and other states' territorial competence... In addition, a state may not actually exercise jurisdiction on the territory of another without the latter's consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects... "61. The court is of the view, therefore, that art 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case... "62. The court finds state practice in the application of the convention since its ratification to be indicative of a lack of any apprehension on the part of the contracting states of their extra-territorial responsibility in contexts similar to the present case. Although there have been a number of military missions involving contracting states acting extra-territorially since their ratification of the convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no state has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of art 1 of the convention by making a derogation pursuant to art 15 of the convention. The existing derogations were lodged by Turkey and the United Kingdom in respect of certain internal conflicts (in south-east Turkey and Northern Ireland, respectively) and the court does not find any basis upon which to accept the applicants' suggestion that art 15 covers all 'war' and 'public emergency' situations generally, whether obtaining inside or outside the territory of the contracting state... "63. Finally, the court finds clear confirmation of this essentially territorial notion of jurisdiction in the travaux preparatories which demonstrate that the expert intergovernmental committee replaced the words 'all persons residing within their territories' with a reference to persons 'within their jurisdiction' with a view to expanding the convention's application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the contracting states."
[16]It may be that the reference or the words "on the territory of" in that last sentence of paragraph 63 are slightly misleading because what the court clearly means, it seems to me, is "within the jurisdiction" because there can be an extension beyond the territory of the contracting state. But there is a crucial distinction here because members of the armed forces were the victims of the alleged breaches and not the authors of them.[17]In R (Al Skeini & Ors) v Secretary of State for the HomeDepartment [2005] 2 WLR 1401 the Divisional Court was concerned with claims by relatives of Iraqis who had been killed by or in the course of activities carried out by British forces. The court held that the exceptions to territoriality did not extend to acts done by troops engaged in military operations, except in a situation where there was other control, such as a military prison. Thus the mere fact that there was a military invasion did not of itself exclude the application of the Convention, but it would only apply in very narrow and special circumstances. That case is under appeal and judgment is to be given tomorrow. However, since I am satisfied that its forces remain within the jurisdiction of the United Kingdom, and so are protected by the Human Rights Act so far as it can apply, and I am not, in this case, concerned with the rights of those who might be affected by the actions of the military, it is not necessary to await that judgment.[18]Clearly a British subject who is killed while abroad is not ipso facto entitled to any redress under the 1998 Act. He is subject to the jurisdiction of the country in which he happens, at the material time, to be. Thus, for example, alleged negligence by the Foreign and Commonwealth Office in failing to warn of dangers which may materialise could not give rise to an Article 2 breach. But the situation is, as it seems to me, arguably different where the British subject, in this case a member of the armed forces of the Crown, is required to go to war. The principles set out in Soering vUnited Kingdom [1989] 11 EHRR 439 are, in those circumstances, certainly arguably applicable. In the judgment in that case, at paragraph 86, the court said this:
"Article 1 of the Convention, which provides that 'the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I', sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to 'securing' ('reconnaître' in the French text) the listed rights and freedoms to persons within its own 'jurisdiction'. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular... "87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms. Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with 'the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society'."
[19]It is arguable that there is no difference in principle since Soering was, just as this case is, concerned with the actions of the state in compelling the subject in question to go overseas where he might suffer the relevant breach of his human rights. The test applied is whether there is a real risk that such treatment would occur. If a member of the armed forces is sent to engage in war, or war-like activities, there is likely to be a real risk that he may be killed. Accordingly, there is jurisdiction, since the act which constituted the breach occurred here. Thus the fact that the deaths occurred in Iraq cannot mean that the breach occurred outside the jurisdiction.[20]Thus the argument goes: when a death occurs the full obligations of Article 2 apply, so that enquiry into the circumstances of the death is needed. Since the deceased was only where he was because he was sent to war, if that was unlawful his relatives may be entitled, perhaps, to some form of compensation, but at least they must know whether it was lawful, and, if it was not, steps should be taken to ensure that the same cannot happen again.[21]The argument is straightforward, but there are considerable difficulties. The decision whether or not to go to war is one which depends on a multitude of factors and in a democratic society must be the subject, ultimately, of political control. It could be highly dangerous and damaging to the security of the realm if, in relation to any death of a serving soldier, or indeed of a civilian caught up in hostilities, those responsible had to foresee the possibility of an inquiry or court action to determine the lawfulness of the war or the military action in question.[22]Furthermore, whether it was indeed lawful in terms of international law, may not provide the proper test since an honest and reasonable belief in its lawfulness may suffice. Nonetheless, those who are ordered to take the actions whose lawfulness is questioned will need to be assured that they are not engaging in unlawful acts of aggression since obedience to orders may not provide a defence. However, they could not be liable if they were acting after an assurance, upon which they were entitled to rely, had been given.[23]There are real issues of causation. Mr Sales submits, in reliance on passages in Osman v United Kingdom [1998] 29 EHRR 245, that the authorities must know, or it must be established that they ought to have known, of the existence of a real and immediate risk to the life of an identified individual to enable Article 2 to apply in all its force. He sets out, in his skeleton argument, the relevant passages upon which he relies and I shall refer to them. In paragraph 115 of the judgment in Osman this is said:
"115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. "116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictablity of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. "
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk..."[24]That case, and I think all the cases that have gone to the European Court of Human Rights, have been concerned with what had happened to an individual who had been killed by, or was under the protection of, agents of the state. For example, he may have been in custody or it may be that there was an alleged failure to provide him with the necessary protection in circumstances where he had clearly been threatened by criminal elements.[25]But there is no reason, submits Mr Singh, to identify a risk to the individual, provided he is within the category of persons who face the risk and the risk materialises. That should be sufficient.[26]Mr Sales' answer to the argument based on Soering is three-fold. He relies, first, on the lack of specific and individualised risk. I recognise, as I have said, that the cases so far relate to individuals who face a particular risk. But that is not fatal, as the asylum claims show. An applicant may not be able to establish that he runs any specific risk, but that he is in the category of persons, for example, failed asylum seekers returned to Zimbabwe, who run a real risk of treatment contrary to Article 3, or indeed, in certain circumstances, perhaps even Article 2. Thus, in my view, the absence of a real and immediate risk to an identified individual is not an essential prerequisite of a possible breach of Article 2. On the other hand, it is a relevant consideration to be taken into account in deciding whether or not an inquiry is, in the circumstances of any particular case, required.[27]Secondly, Mr Sales submits that a decision to send armed forces abroad does not compare to sending a helpless victim to face torture or death. That may well be so, but it is, in my judgment, arguably a difference of degree rather than one which suffices to make a claim impossible.[28]Thirdly, he submits that the legality of the military action is irrelevant to whether there has been a breach of Article 2.[29]This is, as it seems to me, a serious obstacle to relief. It is coupled with the arguments relating to causation. While, as I have said, I believe that it is not essential to identify an individual who is at risk, nonetheless the Strasbourg jurisprudence which deals with the need for an inquiry has been in that context. The same can be said of the United Kingdom authorities. An effective investigation may be needed whether or not the deaths were caused by state agents so that it cannot be ruled out in circumstances where the breach occurred in the sending out to a real risk of death.[30]It is, I think, important to see the reasons why such an investigation is needed. In R (Amin) v Secretary of State [2004] 1 AC 653, at page 666, Lord Bingham cited with approval observations of the European Court in Edwards vUnited Kingdom [2002] 35 EHRR 487. It is paragraphs 69 onwards of Edwards. Paragraph 69 says this:
"69. The obligation to protect the right to life under article 2 of the Convention, read in conjunction with the State's general duty under article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures."
[31]In this case the circumstances in which the deaths occurred are, of course, known. The only purpose of the inquiry which is sought would be to seek to know whether or not the invasion of Iraq was contrary to international law. There was a clear and unequivocal statement from the Attorney General given to Parliament that it was lawful. So far as the British forces are concerned, they can have no liability for their actions since they are protected by that statement. Equally, they are doing their duty as Her Majesty's forces in the knowledge that they risk death in action and their relatives can have no redress against the state, even if the invasion was not, in international law terms, lawful. Thus the only purpose of having the inquiry is to try to make a political point or to show that the Prime Minister has not told the truth. That, in my view, is not a proper reason for requiring an inquiry where a member of the armed forces has been killed in circumstances such as these.[32]Although so-called floodgate arguments are not particularly persuasive in most cases, it is important to see where the availability of relief, such as is sought in this case, might lead. Is the government to consider every world situation where British interests are affected or requests are made for assistance of troops in maintaining order in the light of a possible inquiry if any allegations are made, the whole picture has not been known, and so there are doubts about the lawfulness of any such action? As I have said, the reality is that an inquiry in the circumstances here is too remote.[33]The observations of Pill LJ in Sacker v Her Majesty'sCoroner for West Yorkshire [2003] EWCA Civ 217, upon which some reliance was placed by the claimants, were clearly made in the context of the particular facts of that case. Whether or not the whole truth was told and whether or not the invasion was in accordance with international law, are no doubt matters of considerable interest to many, but the decision whether or not to disclose further material or to hold an inquiry of any sort is a political decision and not one which can be imposed by what would amount to an over-generous application of the Human Rights Act.[34]A government is accountable to parliament and ultimately to the electorate in respect of decisions of this kind, but the claimants can be assured that there is no evidence available which can begin to establish that the invasion of Iraq was carried out in the knowledge that it was unlawful. There are many who believe that it was unlawful, but that does not mean that a contrary belief must have been wrong, let alone that the invasion was carried out in bad faith.[35]It follows that I am satisfied, despite the arguments so persuasively deployed by Mr Rabinder Singh, that there is no real prospect of success and that this claim is indeed unarguable. I must therefore, and do, refuse permission.[36]MS STRATFORD: My Lord, I seek the defendants' costs in the sum of £6,522 odd. That sum represents the costs of lodging the written acknowledgment of service. I make it clear that I do not seek any costs in respect of --

MR JUSTICE COLLINS: That is an awful lot for just an acknowledgment of service.

[38]MS STRATFORD: My Lord, there is a --[39]MR JUSTICE COLLINS: I am just looking for it. I have it somewhere in my papers -- yes, I have it.[40]MS STRATFORD: There is a schedule. My Lord --

MR JUSTICE COLLINS: Yes, there was, of course, a protocol letter, was there not?

[42]MS STRATFORD: There was indeed a protocol letter.

MR JUSTICE COLLINS: Indeed, it was the response to that that largely --

[44]MS STRATFORD: Indeed, my Lord, but although that was then relied on as the decision letter, which was slightly unusual, the substance of the defendants' response to the preaction protocol letter did form an important basis and starting point for the summary grounds, and obviously none of the costs involved in preparing the preaction letter have been included in this.[45]My Lord, you observe that it is a relatively high sum in your Lordship's view. Obviously two counsel were involved, this was an important and weighty matter, relatively novel points were being taken and it is a difficult area of law. In my submission, the costs claimed, in all the circumstances, are entirely reasonable.[46]MR JUSTICE COLLINS: I have an out of date claim, clearly, because it amounts to nearly 8,000 and includes counsels' fees for the hearing. So I think I am out of date, because you mentioned a different sum.[47]MS STRATFORD: I am very sorry, my Lord. There were two schedules of costs which were served, I am very sorry.

MR JUSTICE COLLINS: It is my fault.

[49]MS STRATFORD: There are two separate schedules.

MR JUSTICE COLLINS: Yes, I have the other one.

[51]MS STRATFORD: The only one I am pursuing --

MR JUSTICE COLLINS: It is £6,522.17?

[53]MS STRATFORD: Yes, my Lord, and I make it absolutely clear we are not claiming any costs of the oral hearing. Your Lordship may have seen, from the second schedule, there was in fact, in effect, an agreed costs cap which was agreed following correspondence between the parties of £7,500.

MR JUSTICE COLLINS: Yes, I see.

[55]MS STRATFORD: So our claim falls just about £1,000 short of that agreed costs cap.[56]My Lord, the preaction protocol was complied with. In my submission, the usual order should follow. I should perhaps just mention, your Lordship may be aware of it, and may indeed have seen a copy which, unfortunately, I have not, but the Court of Appeal has handed down a judgment today which does make some comments on the judgment in --[57]MR JUSTICE COLLINS: Yes. It does not, as far as I am aware, it does not indicate any capping.[58]MS STRATFORD: No, my Lord, the reason I thought it appropriate --[59]MR JUSTICE COLLINS: What it does say -- I have seen parts of it, I have not seen the full judgment -- is, as I understand it, that they should be modest.[60]MS STRATFORD: My Lord, indeed. That was why I thought I should mention it. It is the case of Ewing and Hammerton v FirstSecretary of State and others. What I do have, and I have given a copy of this to Ms Kilroy, is a note prepared by --[61]MR JUSTICE COLLINS: I am aware of the judgment. In fact, so far as the procedure to be applied is concerned, I have had some input, but I have not seen the full terms of it. But I know that they were intending to say that the costs should be modest.[62]MS STRATFORD: Obviously the generality of that case, of course, on its facts was a very different case. The reason I mention it is that the Court of Appeal, Carnwath LJ in particular, has made some observations on the fact that summary grounds should not be overly detailed.

MR JUSTICE COLLINS: That is right.

[64]MS STRATFORD: But, in my submission, the amount of detail in these summary grounds was entirely appropriate and did not go in any way beyond what was necessary.[65]MR JUSTICE COLLINS: Also, I think, it is proper to take into account the fact that this was a case where the court directed that there should be an oral hearing. This is, in my view, subject to Ms Kilroy, a relevant consideration when one is deciding on an overall appropriate figure for costs.[66]MS STRATFORD: Indeed, my Lord. I am sure I am right in saying that, at the time when the defendants were preparing the summary grounds and written acknowledgment of service, your Lordship had already directed that there should be an oral hearing. So obviously the summary grounds were being prepared against that background, with that in mind.[67]MR JUSTICE COLLINS: You are quite right. What I said at the outset was that I thought it was obvious that this was going to go to an oral hearing even if it could be considered, initially, on paper. It was much more sensible to sort it out and also to recognise that the likelihood was that it would be a far more protracted permission hearing than is usually the case. It is the sort of situation where one might even have thought, in terms of the possibility of costs, of including the hearing, but you have not --[68]MS STRATFORD: My Lord, it has certainly been considered on my side of the court. I am not making that application and I point out that I am not making it.

MR JUSTICE COLLINS: No, I am not encouraging you to.

[70]MS STRATFORD: I also respectfully suggest that it is relevant that there is, in effect, an agreed costs cap which was agreed between the parties.[71]MR JUSTICE COLLINS: That is fair enough. Right, let us see what Ms Kilroy has to say, first of all, in principle.[72]MS KILROY: My Lord, in principle I do not oppose the defendants' application for costs.

MR JUSTICE COLLINS: What is your position? You are not legally aided obviously.

[74]MS KILROY: No. Those instructing me have had to work hard to find the funds to fund this application.[75]MR JUSTICE COLLINS: Yes. I am not asking you where they come from, but --[76]MS KILROY: It has not been heavily legally aided and it has been a considerable struggle to obtain those funds.

MR JUSTICE COLLINS: I can understand that.

[78]MS KILROY: So it is a matter of some considerable importance to the claimants how much they do have to pay and this obviously was an application brought in the public interest.[79]MR JUSTICE COLLINS: I did give a slight warning, particularly when the relatives of those who had been killed in accidents were joined, that, of course, they were making themselves liable to costs and that the causation problem in their cases was perhaps more acute than in the others, but that was taken on board, I think, by Mr Rabinder Singh.[80]MS KILROY: Yes, my Lord. So, the position is that I do not oppose in principle, but --

MR JUSTICE COLLINS: I do not think you can really.

[82]MS KILROY: -- I do say that the amounts sought in respect of the acknowledgments of service is high. The number of hours spent both by instructing solicitors and counsel is high, in my submission, and there is room for a reduction in the amount claimed.

MR JUSTICE COLLINS: Do you have any specific suggestions?

[84]MS KILROY: My Lord, in my submission, the amount claimed on "Work done on documents - 10 hours", is high and should be reduced to approximately half of that figure. That is what I would suggest, my Lord.[85]MR JUSTICE COLLINS: Litigants sometimes perhaps do not realise how lucky they are to be against the Treasury Solicitor because they tend to pay rather less than they would if it was private solicitors on the whole - not always, but on the whole.[86]MS KILROY: My Lord, my learned friend has very properly brought the case in the Court of Appeal this morning to my attention and the figures that are mentioned in the note that she has handed me of that judgment as being too high for preparation of an acknowledgment of service include the figures of 6,400 in one case and --[87]MR JUSTICE COLLINS: Yes, but so much depends on the facts. I had a case before me where the costs of an acknowledgment of service were put at -- I think it was £50,000. In fact I was going to decide, and would have decided, that about 30,000 was reasonable. But that was a spoiling action in relation to the grant of planning permission by a commercial body who thought that they ought to get their hands on the site rather than those who actually got permission. So a lot depends on the circumstances. In fact, to my chagrin, the parties settled before I could hand down the judgment after I had done all the work preparing it. But the point I am making is that you have to look at the overall circumstances of an individual case. But I take your point that the whole thrust of that judgment, as I understand it, is that it was likely to be that costs should be modest.[88]MS KILROY: Yes, my Lord, and my learned friend has pointed out that there was a preaction protocol letter, but many of the points which were made in that letter -- there is a question mark over the extent of time that was needed to be spent on repeating them in detail in the summary grounds of defence. So, my Lord, to a certain extent I leave it to your discretion to how much to reduce the figure by.[89]MR JUSTICE COLLINS: I always feel that I really have a palm tree behind me when dealing with these questions of costs because, without going into any detail and seeking detailed justification of hours spent, one has to take very much a rule of thumb approach. But I take your point, that is what you are criticising, the 10 hours on documents.[90]MS KILROY: Yes, my Lord, and I assume that the sums charged in relation to counsel are for preparing the --

MR JUSTICE COLLINS: They do not look too bad.

[92]MS KILROY: They do not. Again they are on the high side, but it is the time spent on the documents that, in my submission, is the most egregious sum.[93]MR JUSTICE COLLINS: Yes, they are quite high for advice and conferences I suppose. I am 11 years out of date. Ms Stratford, what about the hours, do you have anything to say?[94]MS STRATFORD: 10 hours on documents, in a case of this difficulty, in the terms of the area of law, my Lord --[95]MR JUSTICE COLLINS: I suppose it is not only, or is it, a question of the documents served, or is it a question of whether you needed to put in any other material?[96]MS STRATFORD: Indeed, my Lord, your Lordship made an order which included provision for the possibility of service of other documents --

MR JUSTICE COLLINS: If you wanted to.

[98]MS STRATFORD: -- from the parties. I may also point out that there were three defendants named, so there needed to be a considerable degree of coordination between the Prime Minister, the Secretary of State for Defence and the Attorney General. To some degree, and I am speculating now, I am sure, from information that I do have, that there was a considerable degree of communication that had to take place in finalising and agreeing.

MR JUSTICE COLLINS: Yes.

[100]MS STRATFORD: My Lord, I do not want to repeat myself, but I would urge your Lordship that it is relevant, and you are entitled to take account of the fact, that we are not claiming a very large amount of costs which I could have a shot at claiming at least some of.

MR JUSTICE COLLINS: I take that point.

[102]MS STRATFORD: Your Lordship has already noted that this is the sort of case where there might well be arguments that it was an exceptional case in which an order for at least some of the costs of preparation and attendance at the oral hearing might be recoverable and I am deliberately, on instructions, not pursuing that application.[103]My Lord, you will have seen from the second statement of costs that the costs of counsel alone of the oral hearing total almost £8,000, and that is not taking account of solicitors costs. So, my Lord, much as we may wish litigation were cheaper, as your Lordship has pointed out, it is not as costly as it is sometimes when the defendants are public bodies and represented by the Treasury Solicitor. In my submission, in all the circumstances, the sum of £6,500 is entirely reasonable.[104]MR JUSTICE COLLINS: Yes, thank you. I confess that I always find these questions of summary assessment of costs difficult because it is not easy to judge whether hours that have been spent on perusing documents or on conferences or whatever are, overall, reasonable. I bear in mind, and have to bear in mind, that the claim relates, and relates only, to the costs of preparing the acknowledgment of service, but I also take the view that it was reasonable, in the circumstances of this case, having regard to the order which I made, that the acknowledgment of service should be rather more detailed than would otherwise have been necessary. It was also known that there would be oral application inter partes. So, in a sense, it could be said that the acknowledgment of service was itself a somewhat unnecessary document because it could have been subsumed in any detailed skeleton argument which would be provided for the purposes of the hearing. So there is an overlap between those two.[105]On the other hand, it is quite clear that this was a very important issue and I do not doubt that it required considerable discussion and consideration as to what, if any, material should be produced to the court by the defendants or any of them and the manner in which the question should be addressed. All that was quite clearly material to the production of an acknowledgment of service.[106]Criticism has been made by Ms Kilroy, in particular, of the 10.3 hours said to have been spent as work done on documents. The actual claim is not over-burdened with documentation, but, as I have said, I recognise that further documents would undoubtedly have had to have been considered.[107]The total is some £6,500 odd. I am aware, as counsel has drawn to my attention, and in any event I knew it was coming, of the decision of the Court of Appeal in the Ewing case. That recognises, as I understand it, that there are, and there will inevitably be, very different circumstances in which the issue of costs will arise. Each case must depend upon its own facts. But the court has made it clear that, as a general proposition, costs in permission applications should be kept to a modest level.[108]This may seem thoroughly unfair to the public body which is on the receiving end of a claim, particularly if, by its provision of an acknowledgment of service or by attending at an oral hearing, it succeeds in establishing that permission should not be granted. But that is, if I correctly understand the reasoning of the Court of Appeal and I hope I have it right, a price that must be paid to ensure that there is no unreasonable fetter on the right to come to court and seek redress for a supposed breach of rights, or an unlawful decision made, or an unlawful administrative action taken, against an individual.[109]It seems to me, in all the circumstances, that a sum which is perhaps higher than that which would normally be considered appropriate for judicial review permission applications which fail, is appropriate. But I do take the view that the sum claimed is slightly on the high side. What I propose to do is to reduce it by a figure of £1,000 so that the total is £5,522.17. I appreciate that that is not strictly mathematical in the sense that I am not attaching it to anything in particular, but it seems to me that overall that is a reasonable sum in the circumstances of this case. So that will be the order.[110]MS KILROY: My Lord, I do have one further issue to raise.

MR JUSTICE COLLINS: Yes.

[112]MS KILROY: Which is that those instructing me will wish to consider your judgment and the question of appeal. First of all, I wanted to ask for expedition of the transcript.[113]MR JUSTICE COLLINS: Yes, you have in fact, because this is a permission application, in theory, I think, 7 days, do you not?[114]MS KILROY: Yes.[115]MR JUSTICE COLLINS: Having regard to the time now, and also to the fact that you do not have a transcript, that it would be reasonable, subject again to anything Ms Stratford may say, to effectively not let time run during the Christmas break.[116]MS KILROY: We would be very grateful for that, my Lord.

MR JUSTICE COLLINS: I think that is reasonable, is it not, Ms Stratford, in all the circumstances?

[118]MS STRATFORD: My Lord.[119]MR JUSTICE COLLINS: So, you can have an expedited transcript of the judgment. You will have to make your peace with the shorthand writer as to when you can get that, but that is a matter for you to discuss with her. I doubt I will be able to correct it until I am in at the beginning of next term, I am sure it will need some grammatical corrections, although it will be fairly obvious I think and you have your notes. So what I propose to do is to give you until, shall I say the end of the first full week of next term? That is to say, until the following Wednesday, which is the 19th, I think.[120]MS KILROY: Thank you, my Lord.

MR JUSTICE COLLINS: Any objection?

[122]MS KILROY: Thank you very much.

MR JUSTICE COLLINS: What about permission to appeal?

[124]MS KILROY: My Lord, I do seek permission to appeal in the event that --[125]MR JUSTICE COLLINS: I appreciate that. There is, though, authority of the House of Lords that it is an appeal rather than a reapplication. I forget the case. I thought, like you, that there was no question of leave on these renewed applications to the Court of Appeal, but the House of Lords in a recent case has said in terms that it is an appeal and not a renewed application. It was the case that doubted Re Poh.[126]MS STRATFORD: Is it the Privy Council?

MR JUSTICE COLLINS: No, it was the House of Lords.

[128]MS STRATFORD: There are notes in the White Book that Re Poh was doubted.[129]MR JUSTICE COLLINS: No, I cannot remember the name of it. I came across it the other day. It surprised me because I had always thought that on a question of renewal of permission it was not necessary to seek leave, one went straight to the Court of Appeal and sought leave from it. I think the answer is that the Court of Appeal has to give leave itself in appeals against refusal for permission, does it not?[130]MS STRATFORD: Certainly the note in the White Book at 54.12.2 --

MR JUSTICE COLLINS: Sorry, 54.12.2?

[132]MS STRATFORD: Yes, my Lord.

MR JUSTICE COLLINS: Yes.

[134]MS STRATFORD: My Lord, if I could be of assistance, I am not aware of that judgment in the House of Lords, however, perusing various cases in which this has arisen, it does appear that there is confusion as to whether it is necessary to apply for leave to appeal at this stage. Some judges appear to have accepted that they can grant leave, and in some cases leave has not been sought and it has not been in issue at the Court of Appeal stage that leave has not been sought in the court below.[135]MR JUSTICE COLLINS: I suspect that generally the view is taken that if it is regarded as unarguable then it is unlikely that leave would be granted, but I am not sure that that is necessarily a good reason. I wish I could remember the name of that case.[136]Let me put it this way, Ms Kilroy, I can avoid the problem by saying that I do not think it is an appropriate case for me to grant leave anyway and that I think you must go to the Court of Appeal if you want to to get leave from them. If I need to grant leave, then I do not. If I do not, you will have to go to the Court of Appeal anyway.[137]MS KILROY: Your Lordship does not wish me to make any submissions?

MR JUSTICE COLLINS: You can if you want.

[139]MS KILROY: My Lord, I would simply say that in respect of almost all of the arguments made by the claimants your Lordship has found in their favour.[140]MR JUSTICE COLLINS: Yes, well, I have been careful, in some of them, not to reach any concluded view, merely its arguability.[141]MS KILROY: In terms of arguability, my Lord.

MR JUSTICE COLLINS: Yes.

[143]MS KILROY: It is simply on the question of whether the legality of the war is a relevant issue to the procedural obligation under Article 2 that your Lordship has found in the case is unarguable.[144]Obviously it is a new and important point which raises an issue of considerable public importance. It is not something which has been considered before and, in my submission, in those circumstances it is appropriate for the Court of Appeal to consider whether your Lordship's refusal of permission decision that it is unarguable is one --

MR JUSTICE COLLINS: Yes, you say it is in the Abassi realm?

[146]MS KILROY: Yes, my Lord, it is an unusual case.[147]MR JUSTICE COLLINS: The Court of Appeal may take the same view, but at the moment I think you should seek to persuade them that that is the correct view. I am not unsympathetic to the points that you make, but I do not think that it would be right for me positively to grant leave, particularly as I am not sure whether I have the power to do so. It may be that someone in due course will sort that one out. You can take, if it helps, and the transcript will show, some degree of sympathy with the points that you are making.[148]MS KILROY: Thank you, my Lord.

MR JUSTICE COLLINS: That is as far as I can go, I think, in your favour.

[150]Thank you everyone.

Cited in 1 later judgment