Van Der Pijl v Secretary of State for the Home Department & Anor [2014] EWHC 281 (Admin)

“85. The claimants seek an order that the MPS return the material and any copies which have been taken of such material which is in their possession to the claimants on the basis that there is no lawful authority for its continued retention. 86. In my judgment, on the face of it, that must be the appropriate order. However, as Mr Lewis QC has pointed out it is open to the MPS to make an application under s.59(5) in respect of material which is in their possession which has been seized in purported exercise of a relevant power of seizure, which includes seizure pursuant to Schedule 1 of the 1984 Act. In my judgment the property which was seized, under the, now known to be, unlawful search warrant, would, even in the light of its being quashed by this court, have been seized in purported exercise of the Schedule 1 power. In those circumstances, it would be open to the MPS to make an application to the Crown Court, pursuant to s.59(5), for an order under s.59(6) for retention of the property, which would otherwise fall to be returned, on the basis that s.59(7) applies namely: that if the property were returned it would immediately become appropriate to issue an application for a warrant in pursuance of which it would be lawful to seize the property. 87. This might be on the basis that the defect with the search warrant, which has resulted in my conclusion that it must be quashed, was one which could have been remedied by the insertion into the warrant of the identity of "the suspects" in the five categories of property where, in the warrant granted, they were unidentified. 88. In my judgment, it would not be just to quash the orders on terms which would preclude the ability of the MPS to make an application to the Crown Court pursuant to section 59, if so advised and provided they did so with due expedition. Therefore, I would make an order, ancillary to quashing the orders of the 12th April and the 6th July, that the MPS be ordered to return all property and any copies which have been taken of such material, currently in its possession, seized, pursuant to the warrant of 12 April 2011 and/or retained pursuant to the orders of the 6th July 2011, within 14 days of the making of the order unless, in the meantime, the MPS has made an application to the Crown Court at Kingston pursuant to s.59(5) for the retention of the material pursuant to s.59(6) on the grounds that the conditions in s.59(7) are satisfied. 89. In respect of the material which has been passed on to the Dutch authorities, they are not before the court and, accordingly, in my judgment, it is not appropriate to make any order requiring the MPS, or the Secretary of State for the Home Department, to return that property. In my judgment it would be sufficient to meet the justice of the case for the MPS and the Secretary of State to inform the Dutch authorities of the orders quashing the search warrant and the s.59 orders and for them to use their best endeavours to persuade the Dutch authorities to return the material and any copies of that material to her or the MPS. It would, at the point at which such material is returned to the MPS or the Secretary of State, by parity of reasoning, be appropriate for there to be an order requiring the Secretary of State or the MPS (whichever has possession of the property) to return those items to the claimants within 14 days unless, in the meantime, an application is made by either of them to the Crown Court pursuant to s.59(5) of the 2001 Act for an order under s.59(6) on the grounds that the conditions in s.59(7) have been satisfied. 90. I would invite Counsel for the claimants and the First and Second Interested parties to draft an order which reflects those principles.”

“1. On 27th April 2011, the 2nd Defendant executed a search warrant at the Claimant’s premises and seized documents. By an order dated 21st December 2012 the Divisional Court quashed the search warrant and ordered the 2nd Defendant to return all the material unless an application was made to the Crown Court at Kingston under section 59 of the Criminal Justice and Police Act 2001 for an order for the retention of the material. 2. The 2nd Defendant made such an application. On 10 July 2013, HHJ Price QC ordered that a member of the Dutch prosecution team concerned with this matter be given access to the documents with a view to preparing a case statement for him and the Claimant in assessing whether or not an order should be made under section 59 of the Act. That process is to begin on 29 July [2013]. 3. The Claimant contends that allowing the Dutch prosecution authorities to have access to the information in this way (1) is not permissible under section 59 of the Act and (2) violates Article 8 ECHR and the need to protect confidential information. 4. Those arguments ought, in my judgment, to be considered at an oral hearing. Given, however, that the inspection is due to begin on 29 July 2013, it is appropriate to grant interim relief now pending that hearing or further order or otherwise that oral hearing would be rendered pointless. Given the urgency, and the fact that the 1st Defendant is proposing to deal with this section 59 application in August, it is appropriate that the matter be heard if at all possible in the week beginning 29 July 2013”

“Report on Relevance”

“Common action of judicial cooperation in criminal mattes shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the member states in relation to proceedings and the enforcement of decisions”

“…direct that a search warrant be applied for under or by virtue of section 16 or 17…”

“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

"The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed."