THE QUEEN ON THE APPLICATION OF ECO-POWER CO UK LIMITED v TRANSPORT FOR LONDON [2010] EWHC 1683 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
[2010] EWHC 1683 (Admin)Case No Case No. C0/3150/2008Venue Royal Courts of Justice Strand
Between
THE QUEEN ON THE APPLICATION OF ECO-POWER CO UK LIMITEDClaimantTRANSPORT FOR LONDONDefendant
Before
Mr Justice SimonMr A Butler (Instructed By Edwin Coe) Appeared On Behalf Of The ClaimantMr M Chamberlain (Instructed By Transport For London) Appeared On Behalf Of The DefendantDate 21 May 2010
[1]MR JUSTICE SIMON: On 2 April 2008, Eco-Power began judicial review proceedings against Transport for London ('TfL') and the Public Carriage Office ('PCO'), which at that time was part of TfL. The challenge was to a decision made on 28 March 2008 to withdraw approval for three versions of the claimant's emissions reduction system for London taxis. That decision had been taken on the technical advice of the Energy Savings Trust ('EST') who are proposed third defendants.[2]It is convenient to refer to the three versions of the systems as the original system, to which Approvals 1 and 2 related, and the modified system, to which Approval 3 related. The claimant also sought damages in the judicial review proceedings but did not particularise that claim in the claim form.[3]Having heard argument, H H Judge Hickinbottom (as he then was) gave a judgment on 22 April 2008, dismissing the claim and the application for interim relief. In a subsequent written decision on costs, he made clear his view that the claimant had been substantially unsuccessful. It will be necessary to look in more detail later in this judgment at these two decisions.[4]The claimant appealed the judge's decision and was refused permission to appeal by Laws LJ on 29 July 2008 in writing.[5]On 24 November 2008, the judge gave directions staying the damages claim but giving leave apply to lift the stay. The case was listed for a hearing on 4 December 2009 when the stay was continued by consent, with the claimant being given until 15 January 2010 to apply to have the stay lifted, with any application to be supported by a draft particulars of claim. The draft particulars of claim have now been produced and I will consider their content later in this judgment. The claim is for damages for negligence, for misfeasance in a public office and malicious falsehood. EST has been added as a proposed third defendant.[6]This is a hearing of a number of applications. The claimant's application,(1) to lift the stay,(2) for permission to continue the claim as if it had been started by Part 7 proceedings,(3) for permission to join EST as the third defendant; and(4) for an order transferring the case to the Technology and Construction Court, or such other court as is appropriate.[7]The defendants' application is,(1) to strike out the particulars of claim as disclosing no reasonable grounds for bringing the claim and/or on the basis that they constitute an abuse of the process of the court; alternatively(2) for summary judgment under CPR Part 24.2. These are, in effect, back-to-back applications. The claimant accepts that if it fails to persuade the court to lift the stay then the proceedings will fall away. The test is whether there is a real prospect of succeeding in the claim at trial. This is the test for Part 24 and the strike out jurisdiction; and it seems to me to be the proper basis for exercising the discretion to lift a stay. I will also consider later in this judgment questions of abuse. The Background[8]The defendants' decision to withdraw the approvals was taken on Friday, 28 March 2008. On Sunday 30 March 2008 the claimant sought, and Griffith-Williams J granted, a without notice injunction restraining the defendants from withdrawing the approvals or from publicising its decision. Evidence and submissions were prepared on a tight timetable and the claim came on for a hearing before the Judge on Friday, 18 April 2008, three weeks after the challenged decision had been made. He gave judgment on Tuesday, 22 April 2008. The evidence was extensive and much of it was technical. The Judge's judgment was clear and comprehensive. The background to the impugned decision was set out in paragraphs 5 to 75. Any summary cannot adequately convey the detailed considerations which led to the judge's conclusion but I shall endeavour to do so.[9]The original systems had been approved; and it was the modified system which gave rise to a problem. This system, like the others, was intended to reduce the emissions of the Oxides of Nitrogen from taxis. This was done by a process known as exhaust gas recirculation (EGR). The original system adopted a proved way of reducing the emissions: by recirculating the exhaust gases through the combustion chamber. The modified system re-cycled them to the exhaust. There were doubts about whether this system worked; but, due to a series of misunderstandings which the judge carefully analysed, approval was given to the modified system and it was installed. When tests were later carried out by EST, it was discovered that the modified system did not work. Indeed, the reduction in emissions was minimal. The technical solution which underlay the modified system was said to be unsound.[10]Although the judge found that there had been a series of misunderstandings in relation to the approval of the modified system prior to its approval and deficiencies in the process leading to withdrawal of approval on 28 March 2008, he found that the challenge failed. This was because when the decision was reconsidered (in April 2008 and in circumstances where no complaint could be made as to the process) the modified system was found to be ineffective in reducing emissions to the standard required to comply with the Euro 3 standard, see paragraph 74 of his judgment.[11]Before considering the findings which are relevant to the present application, it is necessary to mention three points. First, this was a case in which the judge at the implicit invitation of the parties went very fully into the facts. Second, although there was some factual disputes, the judge assumed all relevant facts in the claimant's favour, see for example paragraphs 60 to 65 in the judgment. It is important to have these first two points in mind in the light of one of Mr Butler's submissions, namely that there was not a proper consideration of the rights which the claimant now wishes to raise.[12]Thirdly, although the judgment was confined to the review of 28 March 2008 decision and its legitimacy, the judge made a number of findings. Six of these are important for present purposes. One, the withdrawal of the three approvals was based solely on technical advice received by the PCO from EST, see paragraph 55(ii). Two, after the third approval it was common ground that the claimant only supplied the modified system for installation. No unmodified systems were supplied, paragraphs 55(iii). Three, EST's view that the claimant's modified system appeared ineffective in reducing Oxides of Nitrogen below the Euro 3 limit was clearly a view to which it could properly come on the technical evidence available, see paragraphs 74 and 84. Four, while the PCO had behaved in a discourteous and even quite high-handed manner in its dealings with the claimant, the decision to withdraw the approvals was not based on any base or improper motive, see paragraph 78(iv). Five, both the original decision of 28 March 2008 to withdraw the approvals and the subsequent reconsideration (based on technical tests performed after the litigation started) were lawful, see paragraphs 84 to 85.[13]The claimant sought to challenge these findings. In refusing leave to appeal to the Court of Appeal, Laws LJ observed in his written reasons refusing permission:
"The judge was plainly right to hold that this was not a case of legitimate expectation and so Ground 1 is bad. The other grounds are essentially factual complaints. The judge was entitled to take the view of the facts that he did; in particular (although as the judge said at paragraph 78(iv) the PCO had been discourteous and high-handed) his finding that the PCO did not act from an improper motive is not realistically assailable."
[14]At the hearing on costs, the claimant argued that it had effectively won the case because the defendants had conceded at the hearing that their withdrawal of approval for the original systems was unlawful. In the written decision on 24 November 2008, the judge rejected that argument. Insofar, as material, he held as follows:
"At the time of the claim, the Claimant was only supplying systems that were the subject of Approval 3 (the modified system): and had not expressed any intention of supplying systems subject to Approvals 1 and 2 (the unmodified system) in the future. On the evidence before me, the scope for commercial exploitation of at least Approval 1 was very small if not nil. Although it is true that the withdrawal was disproportionate in including Approval 1 and 2 (see judgment 22 April 2008 at 79). The whole thrust of the claim concerned the withdrawal of authorisation in respect of the modified system until the hearing itself - when the concession in relation to Approvals 1 and 2 was quickly made by the defendants."

The judge ordered the claimant to pay 75 per cent of the costs of the claim.

[15]On 15 January 2010, the claimant filed and served an application notice attaching particulars of claim. It is agreed that I should proceed on the basis that the claim was made in December 2009 for limitation purposes. The particulars of claim, pleaded claims for damages and negligence, misfeasance in public office and malicious falsehood in respect of the matters which had been the subject of the claim for judicial review. In the application notice, the claimant asserted:
"The claimant's claim for damages is compatible with the judgment of Mr Justice Hickinbottom herein."
One of the questions I have to decide is whether that assertion is correct. It is not the only question because Mr Butler, who appears for the claimant, submits that it is open to the claimant to argue at trial that the judge's judgment was wrong. The Ambit of the Argument[16]For the claimant, Mr Butler submitted that the judge's findings are of little, if any, assistance in determining whether permission should be given.(1) The issues which a court is asked to decide when considering an application for judicial review are completely different from the questions a court is asked to decide in a civil claim in negligence. The mere fact that an administrative act is found to have been lawful in the context of judicial review does not mean that it was not negligent; nor does it even mean that it was not motivated by malice.(2) The claimant is not asking the court to determine the same questions again. In the judicial review proceedings it sought to have the withdrawal of approval of the modified system quashed. In the present claim it simply wishes to argue that the withdrawal (or if not the withdrawal, the grant) was a negligent act and one which was motivated by malice; and to obtain compensation for the loss it has suffered.(3) In any event, there is sound authority that judicial review proceedings do not give rise to issue estoppels in the same way that civil proceedings between the same parties may do. He relies on R v Environment Secretary, ex parte Hackney LBC [1983] 1 WLR 524 at 537-8 (Divisional Court) and [1984] 1 WLR 592 at 602A and 606D (Court of Appeal). He submits that it is significant that the passage from Wade on Administrative Law cited by the Divisional Court and approved by the Court of Appeal survives unaltered into the 2009 edition, see pages 209-10.(4) Contrary to the submissions of the defendants, the principles set out in the Hackney case apply with particular force in the light of the Human Rights Act 1998. The suggestion that the proceedings which took place in April 2008, and which were concluded within three weeks and necessarily involved no disclosure, no cross-examination and no detailed investigation of the scientific evidence, could represent the fair determination of the Claimant's civil rights as required by Article 6 is unsustainable.(5) In any event, even if the doctrine of issue estoppel applies in the judicial review context, there is a well-established exception to the doctrine where further material becomes available which is relevant to a decided point and which could not, by reasonable diligence, have been made available beforehand, see Arnold v National Westminster Bank PLC [1991] 2 AC 93. There have been developments since the judicial review hearing. The claimant has repeatedly submitted test results (including the results of tests being undertaken at the time of the hearing) and other scientific evidence which demonstrate that its modified system not only complies fully with Euro 3, but that it out-performs at least one other exhaust system which remains approved. The defendants continue to ignore this evidence and, so far as the claimant is aware, appear not to have conducted conformity testing on any other system. In short, the claimant contends that the defendants are victimising it and refusing to judge its system on the merits; and that their reluctance to do so is actuated by malice.(6) (6) In any event, there is no rule which inhibits an implicit attack on findings of a judge in previous proceedings, see Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321 .[17]Mr Chamberlain, who appears for the defendants, submits that the authorities, on the question of whether a decision in judicial review proceedings could give rise to an estoppel, were not as clear as Mr Butler suggested. Although in the Hackney case the Divisional Court expressed the view that the doctrine of issue estoppel could not be relied upon in an application for judicial review, that was because judicial review was similar to criminal proceedings in that(i) there were no formal proceedings;(ii) there was no true lis between the Crown (in whose names the proceedings are brought) and the respondent, or between the ex parte applicant and the respondent; and(iii) judicial review gives rise to no final decision because the nature of the relief, in many cases, leaves open reconsideration by the statutory or other tribunal of the matter in dispute: see May LJ at 538H-539A.[18]In the Court of Appeal, Dunn LJ indicated that the point was not necessary for his decision. Although he inclined to the view that issue estoppels cannot be relied upon in applications for judicial review, he added that:
"The court has an inherent jurisdiction as a matter of discretion in the interests of finality not to allow a particular issue which has already been litigated to be reopened."
See [1984] 1 WLR 592, at 602A-B. See also May LJ in the Divisional Court [1983] 1 WLR 524 at 539E-F. Decision and Conclusion[19]It seems to me that there is now a well-established rule that a decision in judicial review proceedings cannot be relied on to found an estoppel per rem judicatem. It may be that this principle, if such it is, needs to be looked at again; and Mr Chamberlain undoubtedly makes a strong case for doing so, answering each of the three objections raised by May LJ, and referring to the note in Phipson on Evidence at paragraph 43-35 in the context of Habeas Corpus proceedings and the case of the R v Governor of Brixton Prison, ex parte Osman [1991] 1 WLR 281:
"There seems no obvious reason why estoppels on similar subsidiary issues could not arise in applications for judicial review."
[20]Nevertheless, in my view, if the rule needs to be reconsidered it is for the Court of Appeal to do so. The Hackney case was decided 26 years ago; and has been assumed to be a correct statement of the law for as long. It is not for a single judge in this court to embark on restating the law in this area.[21]However, there is plainly another principle which can be invoked by Mr Chamberlain: the inherent jurisdiction to prevent issues being tried repeatedly before different tribunals. It is not simply a question of finality, important as this principle is, it is in the overall interests of justice that limited resources should not be deployed so that a party can raise before a different tribunal a point which it has previously argued without success. This has less to do with questions of estoppel and much to do with common-sense and practicality. If an argument has failed before one tribunal which has heard the argument and seen the evidence, there will be little likelihood of success before a second tribunal.[22]This approach is recognised in the principle of abuse of process whereby a court will not countenance what, on proper analysis, is a collateral challenge to an earlier judgment, see Secretary of State for Trade and Industry v Bairstow . In that case and having reviewed a number of earlier decisions, Sir Andrew Morritt V-C set out various principles of general application at paragraph 38:
"In my view these cases establish the following propositions: "
A) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court. "B) If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of ss. 11 to 13 Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings. "C) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. "D) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute."[23]It seems to me that those are principles which should be applied in the present case. Here the parties are the same and the standard of proof is the same. The real question is whether the findings are applicable to the intended claim. I should add that Mr Butler submitted that EST was not a party to the judicial review proceedings. That is correct; and it may be that the claimant will want to bring new proceedings against them. But it is not a reason, or at least not a compelling reason, to allow the present case to continue against the present defendants and permit the addition of EST.[24]Finally in this context, I shall deal with Mr Butler's submission that proceedings which are concluded within three weeks, which do not involve disclosure, cross-examination and expert evidence could not fairly determine the claimant's civil rights. I regard this point as unsustainable. In many civil systems which are compliant with Article 6, evidence is not adduced or challenged by cross-examination. The parties' evidence is not adduced orally or challenged by cross-examination. The parties make submissions on written evidence. This was not a case in which the technical issues were side-stepped: on the contrary, the judge went very fully into them. Finally, I consider the speed and comprehensiveness with which this case was dealt with to be a point in favour of the decision, rather than a demerit.[25]The question then is whether the claims now intended to be advanced by the claimant have a real prospect of success in the light of the judge's findings; and I turn to the proposed particulars of claim. Paragraph 1 to 32 set out in an abbreviated form the facts found more fully by the judge. There are then five heads of claim:(1) A claim in respect of the withdrawal of approval for the modified system.(2) A claim in respect of the decision to approve the modified system.(3) A claim in respect of the withdrawal of approval for the original system.(4) A claim for misfeasance in public office. A claim for malicious falsehood. (1) The Claim in Respect of the Withdrawal of Approval for the Modified System[26]Not every unlawful act by a public authority gives rise to a claim for damages and there are well-known difficulties in raising a claim for damages against a public authority in respect of its unlawful act. This is particularly so when express duties are owed to a contracting party in the context of providing independent expert advice. However, in the present case the claimant faces the difficulty that it seeks damages in respect of a decision which has been found to be lawful.[27]In paragraphs34.1 and34.2 of the particulars of claim the claimant alleges, in essence, that on the evidence before them when they made their decision, the defendants should not have withdrawn approval for the modified system. The difficulty facing the claimant is that this was the main issue in the judicial review proceedings. Thus, for example, the complaint in paragraph 34.1 is that the second defendant:
"...withdrew approval for the modified system without having any or any sufficient regard to the fact that the system was fitted on a taxi which was in an inadequate mechanical condition and in particular had not had its injectors changed recently... "
That complaint was dealt with and rejected in terms by the judge at paragraphs 78(iii) and 72-73.[28]The complaint at paragraph 34.2 of the particulars of claim is that the defendant:
"Withdrew approval for the modified system without having any or any sufficient regard for the fact that a) the system had passed the tests carried out by ELUK; b) that it therefore worked to a standard sufficient to satisfy Euro 3 on a properly conditioned vehicle; and c) that it was at least as effective as alternative systems on the market."
This too was a complaint made and rejected by the judge. Points (a) and (b) were dealt with and rejected at paragraph 74. Point (c) was dealt with and rejected at paragraph 78(iv).[29]It follows, not simply that the negligence claim against the defendants in respect of the withdrawal of approval for the modified system constitutes a collateral attack on final findings made by the judge, but that it is a negligence claim whose basis has been considered and found to be without merit. (2) The Claim in Respect of the Decision to Approve the Modified System[30]This is an alternative basis of claim, but is nonetheless an unusual claim. At paragraph 37, the claimant advances a claim that the defendants acted negligently in approving the system which the claimant itself had presented for approval. The argument is that(i) the system which the claimant was presenting for approval as capable of meeting the Euro 3 standard did not, in fact, meet the Euro 3 standard,(ii) the defendants, acting with reasonable skill and care, should have discovered this; and(iii) the claimant now has a cause of action against the defendant for not rejecting the application which the claimant had itself put forward.[31]In my view, the defendants' submission that these facts cannot give rise to a duty of care in the tort of negligence, in the circumstances of this case so fully investigated by the judge, is correct both in law and as a matter of common sense. (3) The Claim in Respect of the Withdrawal of Approval for the Original Systems[32]In paragraph 34.3 of the particulars of claim, the claimant relies on the decision to withdraw approval for the original system, which the defendants have conceded they should not have done. The difficulty with this claim is that, even if the claimant could show that the defendants owed a duty of care, they cannot show loss or damage flowing from it. In his judgment of 22 April 2008, the judge recorded at paragraph 55(iii) that it was common ground before him that, after the third approval, the claimant supplied only the modified system and no unmodified system. Furthermore, in his costs decision of 24 November 2008, the Judge found that at the time of the claim, the claimant:
"Had not expressed any intention of supplying systems subject to Approvals 1 and 2 in the future."
That:
"The scope for commercial exploitation of at least Approval 1 was very small, if not nil."
And that:
"The whole thrust of the claim for judicial review concerned the withdrawal of the approval for the modified system."
[33]There is no reference in paragraph 38 of the particulars of claim to any loss or damage flowing from the decision to withdraw approval for the original system. The figure of 200 units per month sold, the cost of manufacturing, the sale price, the number of units actually sold and the projected profit all relate to the modified system, as do the further tests mentioned in paragraph 38.6. These points were made by the Defendants and remain unanswered.[34]In addition, it is difficult to see how there could be any substantive loss or damage flowing from the decision to withdraw the approval in respect of Approvals 1 and 2 given the procedural history of this claim: the decision was made on the afternoon of Friday 28 March 2008; an injunction was granted over the weekend restraining the defendants from withdrawing the approvals or publicising the withdrawal; that injunction remained in place until the hearing of 18 April. The claimant made no suggestion that its real complaint was directed at the withdrawal of approval for the unmodified system until the hearing itself. When it did, the defendants conceded that it was content for the claimant to use the unmodified system. I should add the fact that there is no proper particulars of any loss claimed under paragraph 38.6 is not an insurmountable object but it is certainly not a matter in the claimant's favour, bearing in mind how long it has had to consider this matter.[35]I therefore conclude that the negligence claim against the defendants has no real prospect of success in the light of the judge's judgment of 22 April 2008 and the costs decision of 24 November. (4) The Claim for Misfeasance in Public Office[36]The tort of misfeasance in a public office involves an element of bad faith. To succeed in such a claim, the claimant must prove, amongst other things, that a public officer exercised a power specifically intending to injure the plaintiff, or acted in the knowledge of or with reckless indifference to the illegality of his act: see Three Rivers District Council v The Governor and Company of the Bank of England [2003] 2 AC 1 .[37]Paragraph 40 of the particulars of claim alleges bad faith on the part of the defendants. Proving such bad faith is a formidable task in any case, but in the present case it faces what, in my view, is an impossible task in the light of the findings of the judge at paragraph 78(iv). The claimant had alleged bad faith in the judicial review proceedings, the allegation was considered and was rejected. The claimant appealed and was refused permission.[38]The claimant is entitled to rely on inferences from the facts, but in the present case the judge has drawn his own inferences from the facts and reached conclusions which are adverse to the claimant. I am doubtful whether even in the absence of the judge's findings the averments are sufficient to found the claim, but it is unnecessary to form any concluded view about that. On any view, even as pleaded, this is not a strong case. I also note that the claim that the defendants are continuing to victimise the claimant is the subject of new judicial review proceedings in which such matters will, no doubt, be ventilated if permission is granted. (5) The Claim for Malicious Falsehood[39]The malicious falsehood claim relates to PCO Notice 06/08 which was posted on PCO's website on Friday, 28 March 2008. I accept the defendants' submission that there are two reasons why this claim has no real prospect of success. First, even if the claimant can show that the notice contained the two statements pleaded in paragraph 44 of the particulars of claim, the claimant must also prove malice. As to this, the claimant's case is summarised in paragraph 45 of the points of the particulars of claim as follows:
"The claimant believes that these falsehoods were published maliciously and with a view to causing pecuniary harm."
[40]The claimant's belief is not a relevant averment but, in any event, it is inconsistent with the findings made by the judge in paragraph 78(iv). There is an express finding that the decision to withdraw the approvals was "based upon the technical opinion of EST, which itself is based upon the technical evidence," was "not based upon any base motive" and was not "improper".[41]Secondly, no claim for malicious falsehood was made in the claim form. Claims in malicious falsehood have a limitation period of one year: see section 4A of the Limitation Act 1980. The claim for malicious falsehood relates to a notice issued by the defendants in March 2008 but was first intimated in December 2009. This claim is accordingly nearly nine months out of time. No good reason for an extension of time has been given; and it seems to me that where such a serious allegation is made, good reason for the delay has to be made out before the court can be invited to exercise its powers under section 32A or proceed on the basis that it should exercise its powers for the purposes of lifting a stay. Conclusion[42]For the reasons I have given, I have concluded that the claim which the claimant wishes to make as set out in the particulars of claim has no real prospect of success. I will hear the parties on the form of the order that should be made.[43]MR CHAMBERLAIN: My Lord, in the light of your Lordship's judgment, my submission is the correct order now would be to grant summary judgment or to strike out the claim, it does not really matter.

MR JUSTICE SIMON: Is the dispute as to the form of the order concerned with the question of costs?

[45]MR CHAMBERLAIN: Yes, well, there is an application for costs and perhaps we should deal with that before we deal with the form of orders as that will have to be included in the order.

MR JUSTICE SIMON: Yes.

[47]MR CHAMBERLAIN: Does your Lordship have a summary schedule?

MR JUSTICE SIMON: No, I do not.

[49]MR CHAMBERLAIN: I will hand it up.[50]MR JUSTICE SIMON: The first question is whether there is any issue as to who should pay the costs. Presumably not.[51]MR BUTLER: My Lord, no.

MR JUSTICE SIMON: Thank you.

[53]MR BUTLER: My Lord, I am told this was served and filed yesterday, it obviously has not reached your Lordship.

MR JUSTICE SIMON: I am afraid not.

[55]MR CHAMBERLAIN: That is the schedule, it covers the proceedings.[56]MR JUSTICE SIMON: Right. How long was this listed for, was it listed for a day?[57]MR CHAMBERLAIN: It was listed for two and a half hours.[58]MR JUSTICE SIMON: Right. That was your estimate but was that the -- that was the estimate given, was it?[59]MR CHAMBERLAIN: I am told it was a joint estimate.[60]MR JUSTICE SIMON: Right. Was that on the basis of Mr Justice Hickinbottom was going to hear it.[61]MR CHAMBERLAIN: It was, that was the understanding of both parties at the time because he had reserved the matter to himself.[62]MR BUTLER: Well, it was more than an understanding. He had, it had been formally enshrined in an order somewhere.[63]MR JUSTICE SIMON: The difficulty is that he is out on circuit, he has released it. Do you want to say anything about these costs?[64]MR BUTLER: My Lord, I have only just been given this and I have not really had an opportunity to flag it up.

MR JUSTICE SIMON: It is not very long.

[66]MR BUTLER: It is not very long. I am sorry to embarrass my learned friend but the only point I do take is in relation to his fee -

MR JUSTICE SIMON: Right.

[68]MR BUTLER: -- which comes to some £6,435. It compares with mine which I think, looking at our statement of costs, comes to £1,500. So, my Lord, I submit that is on the high side and I am sorry I have not had an opportunity to mention it to my learned friend before now.

MR JUSTICE SIMON: That is very courteous of you to make that reservation.

[70]MR BUTLER: My Lord, other than that, I cannot argue with this.[71]MR JUSTICE SIMON: Yes. Well, important as this matter was to your clients, Mr Chamberlain, I think this sort of fee in the Administrative Court is on the high side. I am going to reduce it to £3,500 in respect of your fee for the hearing, but not make any adjustment to the advice fee.[72]MR CHAMBERLAIN: It is always a slightly invidious matter trying to justify one's own value for money, that is why we have clerks.

MR JUSTICE SIMON: I am not going to call your clerk.

[74]MR CHAMBERLAIN: I do not think I will engage with your Lordship in arguing on that.[75]MR JUSTICE SIMON: Very good. Can you draft an order which reflects that?[76]MR CHAMBERLAIN: My Lord, we shall.

MR JUSTICE SIMON: An order on costs.

[78]MR CHAMBERLAIN: The only other question, as I understand it, is what order your Lordship will make disposing the proceedings. There are two possibilities. One would be an order striking out the claim under CPR 3.4. The other possibility would be an order granting summary judgment on the claim under Part 24.2. I think, my Lord, my suggestion would be that your Lordship grants summary judgment. I am not sure I can articulate what the difference is between them.[79]MR JUSTICE SIMON: No, well, if I am going to do that I am going to require an undertaking, no costs to the claimant but a short statement is made ensuring that the application is compliant with Part 24.[80]MR BUTLER: My Lord, can I make a rather different suggestion?

MR JUSTICE SIMON: Yes, you may certainly.

[82]MR BUTLER: This is a matter of form. In my submission, the first task we had to face was to get permission under CPR Part 54.20 to continue proceedings as a Part 7 claim. Clearly we do not have that. In those circumstances, in my submission, without that permission the claim just stands dismissed.[83]MR JUSTICE SIMON: Yes, but if that were so then you might be able to bring precisely these proceedings in a new claim. You might face a difficulty in relation to malicious falsehood. But there is no reason in principle why you should not, whereas if I grant the Part 24 application it seems to me there might be difficulties in doing that.[84]MR BUTLER: Well, my Lord, I have to say -- and I am sure your Lordship does not mean to suggest otherwise -- that submission was not made with a view on some devious future procedural trick.

MR JUSTICE SIMON: No, no.

[86]MR BUTLER: The difficulties facing my client will be the same both ways, I would think. Be that as it may, as a matter of form where we do not have permission to proceed anyway granting summary judgment on claim that we do not have permission to bring seems to me to be wrong.[87]MR CHAMBERLAIN: My Lord, with respect, there is a claim extant for damages. It was made in the original claim form, as your Lordship has seen. So when one makes a claim for judicial review, there is a box which says are you applying for anything else as well as judicial review orders and the answer in this case is, "Yes, damages." It was not particularised at that stage, but it was there and it has not been dealt with in Mr Justice Hickinbottom's judgment.[88]MR JUSTICE SIMON: Part 24 is an unusual solution in Administrative Court proceedings, certainly in my experience. It can be done and, indeed, I have done it myself but it is not often done.[89]MR CHAMBERLAIN: There is no jurisdictional bar and I think there is case law which establishes that, from memory, although what exactly it is I am not sure I could tell your Lordship on my feet. I am relatively confident that there is no jurisdiction.[90]MR JUSTICE SIMON: No, there is not. As I say, I have done it myself and I was reasonably confident that I had the power to do so.[91]MR CHAMBERLAIN: The reason it is an unusual course in Administrative Court proceedings is that generally there is no need for it. There is a permission stage already, if you have permission then obviously your claim does have a real prospect of success.[92]MR JUSTICE SIMON: Yes. This was town and country planning case where there was no permission stage.[93]MR CHAMBERLAIN: Yes. The reason I make the suggestion your Lordship should grant summary judgment rather than simply leaving the claim hanging is just so that there can be no doubt that a determination has been made and if any attempt is made at any future stage to raise any of these points my learned friend -[94]MR JUSTICE SIMON: Well (Inaudible) raised in the extant judicial review proceedings, subject to permission being granted.[95]MR CHAMBERLAIN: Well, certainly if my learned friend is raising new points which have not been adjudicated upon then he can raise those in the extant judicial review proceedings and your Lordship has already seen we have responded to that and that will be considered by a judge at some stage. The points which your Lordship has just said to do not have any real prospect of success because they are inconsistent with the findings of Mr Justice Hickinbottom cannot be raised in any future proceedings and your Lordship should, in my respectful submission, make an order which makes that position clear. We would suggest the appropriate order to do that is an order for summary judgment for the defendants.

MR JUSTICE SIMON: Right.

[97]MR BUTLER: My Lord, I have nothing to add to my previous submission.[98]MR JUSTICE SIMON: I am not entirely convinced that there is a huge amount of difference between staying the claim for damages and entering summary judgment, but it seems to me appropriate in this case where there is an extant claim for damages which has now been set out in a draft particulars of claim that the proper course is to enter Part 24 judgment in relation to that. I am not convinced there is a significant difference between that and staying the application, particularly when the effect of the stay is that the matter will not be raised hereafter.[99]MR BUTLER: My Lord, that just leaves the question of permission to appeal. I am instructed to ask for that permission. I do not want to trespass on grounds now being well-aired before your Lordship, but the thrust of the application -- well, clearly, first of all, we would say the effect of your Lordship's decision is to shut my client out and that is a serious matter. MR JUSTICE SIMON: But it is not the first time he has been shut out.[100]MR BUTLER: My Lord, well, he has been unsuccessful in judicial review proceedings, of course, and has been refused permission to appeal by the Court of Appeal.

MR JUSTICE SIMON: Yes.

[102]MR BUTLER: I appreciate the thrust of your Lordship's decision is that these matters have been fully aired so, in a sense, your Lordship will disagree with me on this. The grounds of appeal I anticipate would be that. Your Lordship did pray in aid to a considerable extent the findings of Mr Justice Hickinbottom and, as I endeavoured to persuade your Lordship this morning, those are findings that we are entitled to challenge. My Lord, on that basis I submit this was not an appropriate case for summary judgment to be given. Your Lordship has the thrust of the submission.[103]MR JUSTICE SIMON: Well, I think you would accept, no proper case where a stay should be granted either.[104]MR BUTLER: Well, my Lord, yes quite. Obviously my position was we should have been entitled to proceed down the Part 7 route and that it was not correct for the court to avail itself of the findings of Mr Justice Hickinbottom when it was precisely our case that we should be entitled to challenge those findings on a subsequent hearing.[105]MR JUSTICE SIMON: I am going to refuse permission to appeal in this case. It seems to me that it is very unlikely indeed that the Court of Appeal will reach a different conclusion on the effect of the judgment of Mr Justice Hickinbottom. Of course, it is possible that they will and that possibility is encompassed by the right of an unsuccessful party to apply to the Court of Appeal directly.[106]MR BUTLER: I am grateful.[107]MR JUSTICE SIMON: Thank you very much, both of you, for your submissions. Anything else?[108]MR BUTLER: My Lord, no.[109]MR CHAMBERLAIN: No.

Cited in 7 later judgments