K & Ors, R (On the Application Of) v Secretary of State for Defence & Ors [2014] EWHC 3023 (Admin)

[2014] EWHC 3023 (Admin)Case No CO/4215/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/09/2014
Before
THE HON MR JUSTICE BURNETT
Between
The Queen on the application of K and othersClaimantSecretary of State for DefenceDefendantsSecretary of State for the Foreign and Commonwealth Office AffairsDefendant&DefendantHM Attorney GeneralDefendant
Samantha Knights (instructed by Deighton Pierce Glynn) for ClaimantsNicholas Moss (instructed by the Treasury Solicitor) for DefendantsHearing date 17 September 2014
JudgmentThe Hon Mr Justice Burnett:
[1]The three claimants in these proceedings assert that they provided intelligence to British Forces in the years leading up to the beginning of 2013. Each suggests that as a result of his engagement with British Forces he is now at risk in Afghanistan from retributive attacks from the Taleban. The claimants have been granted anonymity in these proceedings and access to the court papers has been restricted to reduce the risk that their identities and whereabouts might be discovered.[2]This is their urgent application for interim relief against the defendants. The interim relief sought until the trial of this matter is as follows:- “Pending the determination of this claim, the Defendant do take all steps necessary to provide the Claimants with secure accommodation in Afghanistan and associated living expenses.”[3]The matter has come on quickly. The letter before claim was written on 24 July 2014. The proceedings were issued on 9 September and were considered by Hickinbottom J on 10 September. The anonymity orders were made (and have been confirmed by me) and the urgent application for interim relief was listed. There is as yet no acknowledgement of service. The defendants are unable to confirm or deny whether the claimants were providing intelligence in Afghanistan and have not yet responded to the factual basis upon which they advance their cases. The defendants are unable to confirm or deny in an open hearing whether there is in place any policy or procedure for assisting people who may have provided such help to the British Forces. Mr Moss, who appears for the defendants, has explained that there is closed material which the defendants would wish to deploy to resist the application for interim relief. For reasons which I will come to, he submits that interim relief should not issue in this case in any event, but were I not persuaded by that on the basis of currently available information, I should adjourn the application to enable the defendants to apply for a closed material procedure pursuant to section 6 of the Justice and Security Act 2013.[4]The parties were agreed that the application should be heard in open court in the ordinary way. Both Miss Knights for the claimant and Mr Moss took considerable trouble to ensure that nothing relating to the facts was mentioned in open court which might assist anyone in identifying the claimants or their whereabouts within Afghanistan. I will follow the same course. It is sufficient for the purposes of this judgment to indicate that all three claimants allege that they were recruited by British Forces in Afghanistan as covert human intelligence sources (“CHIS”). Their contact was with British personnel at the Provincial Reconstruction Team [“PRT”]. That ceased operation at the end of 2013. They provided information, in particular about insurgents. They were paid both with cash and in kind and provided with some equipment. Their relationships with personnel at the PRT came to an end in the early part of 2013 and in each case the claimants suggest that they worked for the British for some years before then. Each says that over the course of a number of years there have been threats of various sorts made to them by malign forces in Afghanistan, which have escalated in recent months. There is evidence of violent action against family members which is believed to be linked to former involvement with the British. The claimants wish to move to what they describe as “secure accommodation”. That is not a technical description of the type of accommodation they suggest they require. It means moving to a location within Afghanistan where the risks of attack are comparatively low and into accommodation which provides some basic physical protection. Such accommodation is readily available on the ordinary rental market in various urban areas of the country. They each also suggest that the British Government should not only pay for that accommodation, which is more expensive than the type of accommodation each has been occupying, but should provide them with a stipend to enable them to live. The claimants suggest that in the course of their dealings with the PRT, promises of various sorts were made to the effect that they would be looked after should any threat materialise. One claimant says that he signed a contract with a British official by putting his thumb print to a document. If CHIS were engaged in Afghanistan, there is no dispute between the parties that if their identity and whereabouts became known in Afghanistan that would give rise to some risk.[5]K has moved to the town in which he wishes to live, but he says that he cannot afford to live there. He explains in his statement the reasons why. He says that he feels safe there. A too has moved from the place in which he was threatened and is living with relatives in the urban environment in which he wishes to settle, in circumstances which are inconvenient for them. B has moved around within Afghanistan. He says he has recently received a direct threat to his life which resulted in B returning to the urban location where he would wish to settle. His problem is that he is “out of money” and so has been forced to return to a location where he does not feel safe.[6]The defendants have no record of the claimants being locally employed staff [“LES”]. As one would expect, in a context where the services of a large number of local staff were engaged to support the long-term British presence in Afghanistan, employment records of all sorts were created. The defendants, through Mr Moss, have indicated that in addition to a formal contract of employment each LES had a personnel file. There would have been an offer letter, salary receipts and the like and a local staff handbook providing for detailed terms and conditions of employment, policies and information. The claimants do not, of course, suggest that they were overtly employed by the British authorities in the same way as large numbers of others were.

Outline of the Claim

[7]The claim is advanced upon both public and private law grounds.[8]The public law claim has two aspects. The first is connected with the Government’s policy for providing support for LES in Afghanistan. The second is made under the European Convention on Human Rights.[9]On 4 June 2013 the Secretary of State for Defence made a statement to Parliament about his policy to support those who had been employed by the British authorities in Afghanistan. There were three possibilities. First, a package of training and financial support for LES for up to five years and secondly, and alternatively, a financial severance package. Some local staff, for example interpreters, whose work had been especially dangerous, would be offered resettlement in the United Kingdom. That was the third possibility. To qualify for any of the packages on offer, an individual must have been employed directly by the United Kingdom Government, been made redundant after 19 December 2012 and been in the employment of the United Kingdom for at least 12 months. The statement also referred to a policy to deal with intimidation of LES. That was revised in July 2013. It was designed to provide support for staff and their families who were intimidated or put at risk as a result of employment by the British Government. It was to complement the redundancy package, provide consistency irrespective of which department someone was employed by, and provide confidence so that the best staff would remain in employment. It took account of the fact that the Afghan security forces should have primary responsibility for the security investigation, albeit that staff were recognised as having little confidence in their ability. The policy applies to staff employed directly by the British Government (not indirectly) but after five years away from British employment there would be an assumption that any risk was no longer due to that employment. An LES welfare team is located in Afghanistan to investigate claims of intimidation. They involve the Afghan authorities and the former staff member closely in those investigations. Depending upon the level of employment related risk an escalating level of support would be provided. It ranges from advice at one end of the spectrum to relocation within Afghanistan (and even to the United Kingdom) at the other. Where the welfare team judge that there is an immediate and serious threat, short-term arrangements for re-housing would be considered from the outset.[10]Miss Knights submitted that the claimants fall within the terms of these policies with the consequence that the defendants are obliged to consider their circumstances according to the policy. Alternatively, she submitted that if the claimants do not fall within the terms of the policy, as a matter of public law the defendants would be obliged to operate a parallel policy for the benefit of individuals who were engaged by the British authorities as CHIS. That is because there is no good reason to treat them differently. As I have already indicated, whether there is such a policy cannot be confirmed or denied by the defendants at this stage in open proceedings.[11]The ECHR argument proceeds upon the hypothesis that the territorial reach of the Convention includes the claimants in Afghanistan because of the contacts they suggest they had with the British authorities there.[12]The private law claim has three heads. No one (at this stage) has grappled with questions of jurisdiction or applicable law. They are: i) The claimants were employees of the Crown; alternatively they were under contracts to provide services. Either way Miss Knights submitted that the contract was subject to express or implied terms that the Crown would provide protection and support indefinitely should it be necessary in consequence of the service. This claim is one for damages and specific performance. ii) The claimants are owed a continuing duty of care in negligence to provide protection in the event that they receive credible threats and to provide resources to enable the claimants to live in the relatively safe areas their evidence identifies. This claim is for damages. iii) Reliance is also placed upon the Misrepresentation Act 1967 on the basis that each of the claimants received representations as to future protection which were false. This claim too is one for damages.

The Submissions

[13]Miss Knights submitted that the application is urgent because each of the claimants speaks of continuing recent threats. By reference to the factors identified in American Cyanamid Co v. Ethicon Ltd [1975] A.C. 396 she submitted that(a) there is a serious issue to be tried, which provides a low threshold;(b) that damages would not be an adequate remedy for any of these claimants; and(c) that the balance of convenience, or risk of doing injustice as it is referred to in other authorities, favoured a mandatory injunction against the Crown to provide support pro tem, because none of the claimants has the financial means to relocate himself and his family without assistance.[14]Miss Knights resisted the suggestion that the question of permission on the public law claims should be considered immediately, but did not dispute that the merits of the various claims are relevant at least in considering the balance of convenience. There is no question here of the claimants being able to offer any meaningful cross-undertaking as to damages. On instructions, Miss Knights was able to say that two of them would offer an undertaking, but given that their stated need for interim relief flows from a financial inability to move, such undertakings could not be accepted. Nonetheless, she submitted that a legally aided claimant (as these claimants are) should not be denied an injunction on grounds of impecuniosity. She relied upon Allen v. Jambo Holdings [1980] 1 WLR 252, which I accept provides support for the proposition.[15]By reference to the American Cyanamid lexicon, Mr Moss submitted that on analysis the claims advanced are so weak that there is no serious issue to be tried. He did not dispute that if the risks spoken of by the claimants are real, damages at a later date would not be adequate. There is independent evidence of the risk in the event that a CHIS is identified and located by the Taleban contained in witness statements lodged with the claim. Equally, damages would not be an adequate remedy for the defendants for four reasons. First, the claimants are not in position to compensate the defendants for any wrongly incurred outlay. Secondly, there is a risk of reputational damage if the defendants are required to provide funds to the claimants and it later emerges that their claims lack merit, particularly when the defendants are disabled from advancing any case on the facts in open court at this stage. Thirdly, if an interim order is made in this case it is likely to encourage others to make similar claims on untested assertions. Fourthly, that risk arises not only from nationals of Afghanistan but of other countries. On the balance of convenience, Mr Moss repeated the arguments already mentioned. Additionally, he pointed to the fact that the threat alleged arises from third parties in a foreign state which has its own police force. Extreme caution should be exercised before making a mandatory order to require the defendants to take steps in a foreign country. These were examples of the wider public interest which must be considered when considering the grant of an interim injunction in public law proceedings. Furthermore, the weakness of the claimants’ cases properly come into play at this stage. In the context of a mandatory injunction the court should only grant interim relief if it has a high degree of confidence that the claim will succeed: see Nottingham Building Society v. Eurodynamics Systems [1993] FSR 468.[16]Mr Moss took issue with what he described as the vague nature of the order sought, in particular with the use of the terms ‘secure accommodation’ and ‘associated living expenses’. He also drew attention to Volume 2 of the White Book at 15-49 dealing with interim remedies in proceedings against the Crown.

Discussion

[17]It is as well to start with the jurisdiction to grant an injunction against the Crown. In summary, section 21 of the Crown Proceedings Act 1947 prohibits the granting of injunctive relief against the Crown in civil proceedings. In M v. Home Office [1994] 1 A.C. 377 the House of Lords held that injunctive relief was available against the Crown and ministers in judicial review proceedings. I do not consider that the claimants would be able to secure an interim injunction against the Crown if their claims were limited to the three private law causes of action. In reality, in so far as their pleaded private law claims are in play in this application, what they seek is an interim payment to enable them to relocate.[18]CPR 25.6 governs the procedure to be followed in making an interim payment and CPR 25.7 the conditions which must be satisfied before an interim payment is ordered. In addition to procedural obstacles to granting an interim payment at this stage, the conditions that must be satisfied before an interim payment is ordered are not satisfied. They are i) liability has been admitted; or ii) judgment has been entered; or iii) the court is satisfied that, if the claim went to trial, the claimants would obtain judgment for a substantial sum.[19]There is no suggestion that the private law claims are such that the last condition could be satisfied. The debate about the private law claims has been artificial because it has proceeded on the assumption that English law applies to the alleged dealings, to use a neutral term, between the claimants and the British authorities in Afghanistan. The urgency with which these proceedings have been issued has precluded anything but a general pleading. That said, applying the tests developed in English law to determine the question whether these claimants were “employees”, it appears to me to be very difficult indeed to conceive that they were. For example, the reality is that the claimants could have walked away at any time. There was no mutuality of obligation. There was no real control exerted over them. That is not to say that there may have been contractual arrangements in place, although (again applying English law) is it really to be said that the claimants understood themselves to have entered into enforceable legal obligations? The Misrepresentation Act does not reach to Afghanistan. The essence of this part of the claim is contract, buttressed by implied terms about which there would be much argument. I readily accept that in English law terms the suggestion that the claimants were owed a duty of care may be uncontroversial although its scope would be.[20]In my judgment the argument in support of an interim injunction rests upon the public law claims.[21]Those claims are, in my judgment, weak. I am conscious that the question of permission to apply for judicial review is yet to be considered and nothing that follows should be taken as usurping the function of the judge who considers that question on whatever material might then be available. Nonetheless, before contemplating granting interim relief, as Cranston J put it in R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin), the claimant must demonstrate ‘a real prospect of succeeding at trial’.[22]The claimants’ first argument is that their circumstances are covered by the policies to which I have referred. The interpretation of a policy is a matter for the Court, although the understanding of the policy maker is a relevant factor in determining its meaning. To my mind it is clear, as Mr Moss has submitted, that the policy is concerned with individuals who were in open employment with the British authorities in Afghanistan; in colloquial language, those who were on the books. It is fanciful to suppose that it was designed to cater for CHIS.[23]The argument that the policies would be unlawful if the claimants did not fall within them proceeds on the basis that the defendants “failed to treat persons in a similar situation similarly”. It is suggested that because a CHIS might be at risk in consequence of his work for the British authorities there is no material difference with LES who come under threat. This too appears to me to be a weak claim. A CHIS is in a very different position from a person in open employment properly so called. The best the claimants can establish is that there was a contract for services, rather than employment. The policy in question relates to employees. It applies to people whose employment by the British authorities was overt and thus known to all. It applies to those who were made redundant. These claimants were not made redundant. Their evidence suggests the relationships just fizzled out. The involvement of CHIS is covert with the expectation that it will remain confidential. The claimants are not comparing like with like.[24]Whether or not there is a separate policy in place to protect CHIS who run into difficulty of the sort alleged by the claimants is not known. However, the question whether to have a policy in place covering CHIS in any foreign country would be a matter of political judgment for the relevant Secretaries of State and upon which the courts would be very slow to dictate an outcome.[25]Miss Knights recognised that to get an argument home under article 2, 3 or 8 ECHR the claimants would have to persuade the domestic courts to expand upon their current understanding of the Strasbourg jurisprudence relating to the territorial reach of the Convention. The claimants, and all those who might threaten them, are in Afghanistan, The British Government has no control over them. The claimants have never been, and are not now, in areas under the effective control of British Forces. Miss Knights submitted that the claimants should be treated for the purposes of the Convention as if they were serving members of the British Armed Forces. In those circumstances the argument which prevailed in Smith v. Ministry of Defence [2013] UKSC 41, that serving members of the United Kingdom Armed Forces abroad were protected by the Convention, could be applied by extension. Alternatively, the claimants suggest that they were more generally under the “control and authority” of the British and so, applying the language of the Grand Chamber in Al Skeini v United Kingdom (2011) 53 EHRR 18 at [137], the State assumed a responsibility to secure the rights and freedoms guaranteed by the Convention. In my view it is not arguable that the relationship explained by the claimants in their evidence involved control and authority leading to the conclusion that the British state had jurisdiction over them. Their position was in no way analogous to serving members of the Armed Forces. On domestic and Strasbourg authority this part of the claim is unarguable, in my judgment.[26]It will be apparent that I am far from satisfied that there is any serious question to be tried in the judicial review side of these proceedings. In those circumstances it would be inappropriate to grant any interim relief. In case that conclusion is wrong, I set out further factors which would lead me to refuse to grant the interim relief sought, or any interim relief, which I shall deal with briefly.[27]If the claimants were right in their public law claims the realistic best they could hope for in the substantive public law proceedings would be an order that the defendants consider their position under the policy, rather than an order that immediate protection of any particular sort be afforded. At an interim stage it would be illogical for the claimants to be able to secure a greater benefit than they could achieve at the trial of the public law claim.[28]Nottingham Building Society, to which Mr Moss referred me, drew on the decisions of Hoffmann J in Films Rover Ltd v. Canon Film Sales Ltd [1987] 1 WLR 670 and Megarry J in Shepherd Homes Ltd v. Sandham [1971] Ch 351. The latter case was authority for the proposition that “in a normal case, the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted” before granting a mandatory injunction. Hoffman J, in a passage between 680E and 681B, explained that this was a guideline, rather than an independent principle. The underlying principle was that the court should take the course which appeared to carry the lower risk of injustice, but that in a case of a mandatory injunction there was often a higher risk of injustice in granting it. He continued:
“If it appears that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it, even though the court does not feel a “high degree of assurance” about the plaintiff’s chances of establishing his right, there cannot be any rational basis for withholding the injunction.”
[29]Miss Knight’s argument is that if the public law claims have any chance of success, then because of the potential for harm to the claimants and their families if they do not move, the balance must fall in their favour. She recognised that the prospects of success are a relevant factor in the evaluation and that the factors identified by Mr Moss as set out above can properly be considered in an overall evaluation.[30]The evidence of each of the claimants is that he removed himself from the place in which he fears reprisals and commenced living elsewhere, albeit in circumstances which are inconvenient and in want of funds. K and A remain in those places, B does not. The steps necessary to provide immediate protection were taken by the claimants themselves. In the event that the underlying account of the claimants is correct, the personal risk has been substantially mitigated. B speaks of guarding his house. The position is not as stark as might be thought. Even if this application is approached on the basis that there is just an arguable public law case I would conclude that the balance of risk of injustice falls against the claimants.[31]Mr Moss’s objection that the language of the proposed mandatory order is too vague and also that the court should hesitate before requiring the defendants to take steps in a foreign sovereign country could be overcome by reformulating it to require the defendants to apply the intimidation policy which the claimants suggest applies directly, that is to say investigate the claimants’ circumstances and take the steps dictated by the policy in the light of the conclusions reached about those circumstances. However, there is force in his submission that it is not in the public interest to grant interim relief on untested assertions which the defendants are, for good reason, not able to deal with at this stage in the litigation. Miss Knights characterised this as a floodgates argument that should be resisted. But were interim relief to issue in this case it would do so on the basis that a litigant could approach the court in the knowledge that assertions that he was a CHIS in Afghanistan (or elsewhere) and now at risk because his cover was blown was sufficient in itself to obtain relief.[32]For all these reasons the application for interim relief is refused.

Cited in 1 later judgment