D'Costa & Anor, R (on the application of) v Secretary of State for Constitutional Affairs & Anor [2006] EWHC 465 (Admin)

Case No CO/1255/2005Case No CO/1257/2005[2006] EWHC 465 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 23 February 2006
Strand
London WC2
B E F O R E:
MR JUSTICE OUSELEY
THE QUEEN ON THE APPLICATION OF
ROLAND ROSARIO D'COSTA
AND
RUSSELL HERBERT PLUMPTON JOYCE
(CLAIMANTS)
-v-
THE SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS
THE LORD CHANCELLOR
(DEFENDANTS)
Computer-Aided Transcript of the Stenograph Notes of
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MR PATRICK ROCHE (instructed by Thompsons) appeared on behalf of the CLAIMANT
MR JONATHAN CROW (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
J U D G M E N T
Between
D'Costa & Anor, R (on the application of)ClaimantSecretary of State for Constitutional Affairs & AnorDefendant
[1]MR JUSTICE OUSELEY: The claimants are District Probate Registrars. Mr D'Costa was appointed in 1996 and is Chair of the District Probate Registrar's branch of the Public and Commercial Services Union. Since 2004 he has been Chairman of the Association of District Probate Registrars.[2]The other claimant, Mr Joyce, was appointed as a DPR in 1995 and was secretary of the Association of District Probate Registrars from 1996 until 2004. The association is a small association. It has 11 members, one for each of the 11 District Probate Registries.[3]The claim seeks simply a declaration "that District Probate Registrars are judicial officers". The claim challenges what it says is a decision, taken on 29 November 2004 and continuing by the Secretary of State for Constitutional Affairs and the Lord Chancellor, that DPRs are not judicial officers. The grounds assert that the decision is ultra vires, wrong in law and irrational.[4]The dispute arises in the context of a longstanding debate between DPRs, with the support of their Union, the PCSU, and the Secretary of State over pay and appraisal. The terms of the debate over pay and appraisal could be affected, say the claimants, by the grant of the declaration sought. The ascertainment of the true status of DPRs might also have a wider significance than simply pay and appraisal because of the importance of establishing whether those who exercise judicial functions hold "judicial office".[5]It appears to be those considerations in particular which led Bean J to grant permission to apply for judicial review, notwithstanding the significant passage of time since the letter of 29 November 2004 and before the start of proceedings on 28 February 2005, and notwithstanding the fact that that letter, which is the subject of the challenge, confirmed the position expressed by a letter on behalf of the Lord Chancellor as long ago as 24 February 2003, saying that he had decided that DPRs should not be "judicial officers".[6]It is necessary to set out briefly the history of the descriptions of the status of DPRs, but first of all I turn to the functions which they undertake. In legal terms their functions are largely contained within Parts IV and V of the Supreme Court Act 1981 and in the Non-Contentious Probate Rules of 1987. That title for the Rules does not mean, however, that they do not make contested decisions.[7]The principal functions of DPRs in more general terms can be understood from the terms of an advertisement in 2000 for District Probate Registrars. This said that the purpose of the job was to ensure the proper disposal of applications made to the District Probate Registry for the issue or revocation of grants of representation to the estates of deceased persons. The main duties included responsibility "for the proper and due disposal of judicial business within the District Probate Registry, including the adjudication of summonses ... applications, considering evidence, making discretionary rulings and orders".[8]In addition to overall responsibility for the issue of grants of representation, a duty on a DPR to exercise "judicial responsibility and oversight of the throughput of work" within the Registry. They had to give rulings in respect of pre-grant inquiries and make directions for the progress of applications and the evidence required. This job description concluded by saying:
"District Probate Registrars are Judicial Officers appointed by the Lord Chancellor under section 89(1) of the Supreme Court Act 1981 ..."
[9]The functions under the Non-Contentious Probate Rules include powers to direct that applications be made through solicitors; ordering corrections; requiring solicitors to certify facts; directing summonses and holding hearings; deciding which of equally entitled persons should take a grant and resolving such disputes; considering whose rights would be affected at various stages by the decisions; and making related costs orders, including wasted costs orders. There is a power to refer disputed issues to a judge or district judge, but that is rarely exercised. The DPRs also undertake certain administrative tasks.[10]The description of the functions which I have just given has been summarised from a report of the PA Consulting Group, which undertook a review of the work of the DPRs as part of an examination of the functioning of the Probate Service, and the court has been shown a copy of what is described as the final draft of that report dated 29 August 2001. Some weight has been put on that report because of the way in which it characterised those functions as judicial in nature.[11]For completeness, I should say that in London for unknown historical reasons the functions carried out elsewhere by the DPRs are carried out by District Judges of the Family Division. The Probate Service is part of the Court Service within the Family Division.[12]Turning to the statutory provisions to which Mr Roche, who appeared on behalf of the claimants, referred, the appointment of DPRs is governed by section 89(1) Supreme Court Act 1981. They are appointed by the Lord Chancellor to one of the Supreme Court offices listed in Schedule 2. Part III of Schedule 2 describes the office and the qualifications of a DPR -- either a five-year general qualification, which relates to rights of audience, or five years relevant experience as a civil servant. The office in Part I of the Schedule is that of the Official Solicitor, who plainly does not exercise judicial functions. Part II refers to Masters and Registrars, who do exercise judicial functions. By section 92(7), DPRs hold office at Her Majesty's pleasure. When the Constitutional Reform Act 2005 is in force, they will be appointed by Her Majesty, who would be able to dismiss them on the recommendation of the Lord Chancellor. They would not go through the Judicial Appointments Commission process.[13]I was also referred to section 93 of the 1981 Act, as amended by the Judicial Pensions and Retirement Act 1993. This provides:
"(1) Subject to sub-section (2), any person who holds an office listed in column 1 of any part of Schedule 2 ... and is not employed in the Civil Service of the state shall be deemed to be so employed for the purposes of salary and pension. (2) Sub-section (1), so far as it relates to pension, shall not apply to a person holding qualifying judicial office within the meaning of the Judicial Pensions and Retirement Act 1993."
I read from the Supreme Court Practice because the versions of the amended statute in Halsbury Statutes and Current Law Statutes are so incorrect as to have reduced sub-section (1) to gobbledygook. The provision, however, clearly contemplates that there are some within Schedule 2 who are civil servants and some who are not, but who for certain purposes are deemed to be.[14]One thing is clear, however, and that is that DPRs are not qualifying judicial office holders within section 1(6) and Schedule 1 of the Judicial Pensions and Retirement Act 1993, long though the list of such office holders is.[15]Mr Roche also referred me to the Courts Act 2003, Part 6. Under the heading "Judges", section 64 is to be found, which provides that the Lord Chancellor may by order alter the name of an office listed in section 64(2), which in addition to the offices of the Lord Chief Justice and other high offices also includes that of District Probate Registrar. Mr Roche drew my attention to section 107(4) of that Act, which defined "Judges" as those whose offices are listed in section 64(2). No other provision of the Courts Act 2003 was relied on in this context, however.[16]He also pointed out that the Courts and Legal Services Act 1990, section 75, debarred a DPR, as the holder of an office listed in Schedule 11 to that Act, from legal practice.[17]Mr Roche contended that, in addition to those statutory provisions upon which he drew support, there had been recognition elsewhere of the judicial status of DPRs. It was not disputed by Mr Crow, for the Secretary of State, that many of the functions (although he could not speak for the percentage of time) of a DPR was of a judicial nature, as they contended. The PA Consulting Group report had said that the question of the status of DPRs was vital in considering, as a fundamental part of the probate review, whether options were open that would enable their functions to be discharged by others. In order for the PA Consulting Group to make recommendations in relation to that, they formulated a test for whether somebody was a "judicial officer". It is not clear where that language came from because they say that they have found no established definition of a "judicial officer". Having identified what they regarded as attributes of such an officer, however, they said that it was not possible conclusively to judge whether a particular post was judicial or not, simply by looking at those criteria. But they consider that there was an objective test which could be deduced and concluded that a "judicial officer" was one who "is empowered by Parliament to exercise a discretion which affects the legal interests of a party and whose decisions are binding". The fact that the DPRs undertook certain administrative duties did not, they said, affect their conclusion that DPRs "are properly judicial officers".[18]I was not referred to any other parts of the report to see what significance the management consultants attributed to their conclusions; nor was I referred explicitly to any commentary as to whether the final draft had been accepted by the Lord Chancellor, or at least whether the terminology used for the purposes of analysis of the various functions had been accepted as having the significance which Mr Roche ascribed to it. In addition to the PA Group report, he relied on the language of the job description to which I have already referred.[19]This language was repeated in a letter of around the same time from Mr Knight, the deponent on behalf of the Secretary of State in these proceedings. Thus, submits Mr Roche, the language of "judicial officer", whatever it may mean precisely, is language with which the defendant is familiar and to which he ascribes some importance.[20]Mr Roche drew my attention to some other correspondence. But the correspondence then begins to reflect the process of discussion undertaken on behalf of the DPRs by the PCSU, seeking to enhance their status of pay and other terms by reference to their description as holders of a "judicial office". It is not necessary to go into that correspondence in much detail. It is clear that the expression has been used on a number of occasions by the Government, but it is equally clear, as Mr Crow points out that, that the purpose of the debate was very much to ensure that DPRs were paid "the rate for the job which reflects their duties and role"; see the letter of 10 December 2001 from the PCSU. Such a theme appears regularly through the correspondence.[21]However, the debate was pursued in the end to the Lord Chancellor himself, who, having considered the letters written by and on behalf of the DPRs, reached what is described as a decision on 24 February 2003. In that letter he said to Mr Campbell of the PCSU that his decision was that DPRs- "... should not be judicial officers. The criterion for determining whether a post requires to be filled by a member of the judiciary, is not simply whether the duties of the post are judicial in nature, but whether, under Article 6 of the European Convention on Human Rights, those duties are required to be carried out by a member of the judiciary. In the case of the District Probate Registrars, the Lord Chancellor recognises that they carry out very valuable functions but he has decided that there is no compelling reason why they should be appointed on judicial terms to carry out those functions. The Lord Chancellor realises that his decision, which was taken following long and careful consideration, will come as a disappointment to the District Probate Registrars."[22]It is clear that that letter of February 2003 continues a state of affairs that already existed and does not alter the position. That much was made clear by a letter from the Lord Chancellor dated 24 May 2004 in which, referring to that letter, he said that Lord Irvine's decision was to confirm the existing status of DPRs:
"District Probate Registrars are and always have been paid civil servants."
[23]He also pointed out that the inclusion of DPRs in the list of "judicial officers" in section 64 was an oversight, and that officials had his instructions to seek an amendment to that at the earliest opportunity. He then, whilst appearing to quote from a letter from his predecessor which I have not seen, says that either his or Lord Irvine's decision follows careful consideration of all the arguments and advice about other Court Service posts that include an element of adjudication which engages ECHR Article 6: for example, consideration had recently been given to the post of justices' clerks in relation to unified administration. Those officers, said the Lord Chancellor, certainly fulfil judicial functions, but they are not to be appointed on judicial terms.[24]Confirming that that remained the view of the Lord Chancellor, he then said:
"District Probate Registrars have discretion under the Non-Contentious Probate Rules 1987 to enable them to decide the most satisfactory course of individual probate applications. However, whilst the Registrars have freedom to make decisions in individual cases, they are, as are all Civil Servants, accountable to their line manager for their attendance, conduct and discipline and for the overall work (save decisions in individual cases as mentioned above) that they do. They are also accountable to their line manager for contributing to delivering a service to the public, in line with our aims and targets."
[25]Finally, I turn to the letter which is said to found the existing challenge, that of 29 November 2004 from the Lord Chancellor to the PCSU. In that letter the Lord Chancellor says as follows:
"In your latest letter you make the further point that you are not aware of any statutory provision which empowers the Lord Chancellor to determine whether District Probate Registrars are judicial officers. This is not a matter of 'determination' but of confirming the current position. That is that District Probate Registrars are paid Civil Servants. Moreover, my predecessor considered, on the advice that he had received, that whilst we value their important work, there is no need for Registrars to serve on judicial terms to carry out their work. He therefore decided that such a change was not necessary. I confirm, again, that I share that view. I do not believe that a system of competencies and appraisal affects the Registrars' independence in any way. The purpose of appraisal will not be to review individual decisions."
[26]In support of his contentions that the judicial nature of DPRs' functions, the statutory language and the correspondence told in favour of the declaration sought, Mr Roche drew attention to the fact that the position of DPRs was established by Parliament; they took decisions affecting the civil rights of individuals; they did so pursuant to rules of court; and they could award costs and were subject to appeal to a judge.[27]In my judgment, it is quite impossible to make the declaration sought. "Judicial office" is not a legal or statutory term. I have not been shown any statutory provision which has been misinterpreted by the defendant; no discretionary power has been shown has been exercised in an unlawful manner; and no power has been exercised which could not be exercised. Mr Roche never grappled with the legal basis upon which he could seek a declaration in the terms which he did.[28]I have not been referred to any statutory provision, whether in the 1981 Act or elsewhere, which either dealt with DPRs specifically or with classes of officers generally, but which could include DPRs, which referred to "judicial officers" or set requirements which the Lord Chancellor could be said to have breached in respect of them. I have not been referred to any power to set terms of appointment against which a refusal to describe DPRs as judicial officers or to grant their wishes on terms and conditions, appraisal and pay, could be measured as an unlawful exercise of any discretion. "Judicial office" is not a term used in any Act, statutory provision, policy statement or contractual document against which DPRs' functions could be measured, or against which the Lord Chancellor's decision in November 2004 or, more aptly, February 2003, or even earlier, could be measured and found wanting.[29]The phrase, in truth, is a phrase without legal meaning, although it can be given one by management consultants or anyone who uses it. But that has no legal significance whatsoever.[30]In truth, the DPRs want to be declared to be judges or judicial office holders because they exercise judicial functions, and then to use that description as a vehicle in a dispute over terms and conditions. But whether they are to be described as judicial officers, or whether they are to be accorded the status of judges, whether their terms and conditions are to reflect that description is a matter for primary legislation: for example, the terms of judges as dealt with in the Judicial Pensions and Retirements Act or in certain provisions of the Supreme Court Act are the sort of provisions which would have to be made to meet what it is that the DPRs, in truth, want, and seek to promote through this declaration.[31]As Mr Crow pointed out, many may exercise what could be called judicial functions and have some similar characteristics to those upon which Mr Roche relied, but they are not judicial office holders or judges. Examples include the Parliamentary and Local Government Ombudsman and the Information and Competition Commissioners. Indeed, at one time immigration adjudicators were not regarded as judges. Their position has been changed over time by statutory intervention.[32]Mr Roche puts some reliance on the language of section 93 of the Supreme Court Act 1981. The Lord Chancellor's letter said that they were civil servants. Mr Knight, the Director of the Probate Service for the DCA, in paragraph 14 of his witness statement, said that they were treated as civil servants for the purposes of pay under section 93, and that their salary was met, therefore, from the DCA budget, not from separate Parliamentary vote; but they were not paid in accordance with the usual DCA staff pay scale. They had their own pay scale. They were not eligible for judicial pensions under the 1993 Act.[33]There may be a contradiction between what the Lord Chancellor said and what Mr Knight says in that respect, but even if under sections 89 and 93 the claimants are not civil servants but office holders paid as civil servants, they cannot leap from that to the declaration sought. It does not mean that they are holders of a "judicial office", whatever that may mean. Even if they are not civil servants, they cannot be said on that basis to be "judicial officers". That position would not entitle the High Court on judicial review to declare that they had some status currently not recognised in law.[34]Alternatively, Mr Roche suggests that the Lord Chancellor's powers might involve the exercise of the Royal Prerogative. I have not seen the terms of appointment of District Registrars, and I have been shown no provisions under which their terms and conditions are set. I have seen nothing which suggests, however, that, even if the setting of their terms and conditions and the negotiating process which is undertaken involves the exercise of the Royal Prerogative, there is anything which could justify the assertion that there is something unlawful about what the Lord Chancellor has done or decided.[35]If the Royal Prerogative is the source of a power to set or vary terms and conditions for DPRs, there is nothing to suggest that the refusal of the nomenclature, pay or appraisal terms sought by DPRs is in any way unlawful. They want different terms and conditions which the Secretary of State will not concede. That is not a matter for the courts.[36]The fact that there may be some broad understanding between the Lord Chancellor and DPRs that, if they were judges or holders of judicial office, there might be certain differences in their terms and conditions does not become a basis for the court declaring what titles they should have, with whatever effect that might then have on their terms and conditions. The question at root is: should the job of a DPR be done on the terms on which they currently do it, or on some other terms and conditions which they seek? That is for the Secretary of State or for Parliament in the absence of any relevant statutory provision being engaged.[37]Mr Roche did refer briefly to the question of whether DPRs performing a judicial function were determining civil rights, and, if so, whether their current terms and conditions meant that they and the system for resolving those issues before them and on appeal, complied with Article 6 ECHR. No litigant has suggested that the procedures did not meet Article 6, and there could be some difficulties in the way of such a contention in view of the appeal provisions. If a litigant did succeed in making that claim, that would obviously cause a re-examination of terms and conditions. But it does not appear to me that it is for the would-be judiciary to seek that a court should declare their terms and conditions to be non-compliant with Article 6 in order to assist them to enhance their negotiating position for improvement in terms and conditions. In any event, this point was something of a side wind and was not seriously pursued. Mr Roche accepted that he was not saying that DPRs had to be judges in order for what they did to comply with Article 6.[38]For those reasons, these applications are dismissed.[39]MR CROW: My Lord, I am grateful. I would invite your Lordship to dismiss them with costs.[40]MR ROCHE: My Lord, your Lordship has a discretion not to make an order for costs if there is a matter of public importance involved. I would submit that this falls within that category.[41]MR JUSTICE OUSELEY: The order for costs will be made as sought. There is a potential interest that the public has in the status of DPRs, but the ventilating of it through these judicial review proceedings once the matter has been analysed, in my view, shows that there is no case at all for the bringing of legal proceedings whatever the strength of the underlying merits in the negotiation. It is to the strength of the legal case that one needs to look when deciding whether there was a proper public interest that might warrant an exception in relation to costs. So there will be an order for costs against the claimants.[42]MR ROCHE: My Lord, I am also instructed to apply to your Lordship for leave to appeal.[43]MR JUSTICE OUSELEY: I refuse leave to appeal. On analysis, the case is quite unarguable.

Cited in 3 later judgments