Nelson, R (On the Application Of) v The Parole Board of England And Wales [2017] EWHC 728 (Admin)

[2017] EWHC 728 (Admin)Case No CO/1156/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/04/2017
Before
MR JUSTICE TURNER
Between
The Queen (on the application of Anthony Nelson)ClaimantThe Parole Board of England and WalesDefendant
Tim Buley (instructed by The Government Legal Department) for DefendantNo appearance by or for ClaimantHearing Hearing dates: 7 th March 2017
Judgment ApprovedMr Justice Turner :INTRODUCTION
[1]On 14 November 2014, the claimant was sentenced to 20 months imprisonment for offences of robbery and breaching a restraining order. He was released on licence having served half of his sentence. This licence was later revoked and the claimant recalled on the ground that he had acted in breach of a condition of his parole. Subsequently, the Parole Board directed that an oral hearing should take place to consider his re-release.[2]The claimant complains that there was undue procedural delay in the listing of the hearing and that his rights under Article 5 of the European Convention on Human Rights and under the common law have been infringed.[3]On 6 July 2016, the court gave permission to apply for judicial review on all grounds relied upon.[4]The point of central legal interest in the case concerned whether or not Article 5(4) applies to circumstances under which offenders have been recalled for breach of their licence conditions within the period of the original determinate sentence of imprisonment.[5]As it happened, the identical point arose in the case of Youngsam v The Parole Board [neutral citation to be inserted] as a result of which both cases were listed before me to be heard together. Mr Youngsam’s claim was fully but unsuccessfully argued. Mr Nelson, however, did not appear. Consequently, the defendant contends that the court should strike out his claim without further ado.

THE BACKGROUND

[6]The claimant was represented initially by the same counsel and firm of solicitors who represented Mr Youngsam. However, on 19 October 2016 the court was notified that the claimant’s certificate of public funding had been cancelled and his solicitors, perfectly properly, came off the record. The claimant has, since then, entered into no further communication with his former legal team, the defendant or the court.

THE RULES

[7]CPR Rule 3.4(2) provides (so far as is relevant):
“(2) The court may strike out a statement of case if it appears to the court… (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings. (c) that there has been a failure to comply with a rule, practice direction or court order.”
[8]CPR rule 1 provides, so far as relevant, as follows:
“(1) These Rules are a new procedural code with the overriding objective of enabling the Court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders. 1.3 The parties are required to help the court to further the overriding objective.”

THE CASE LAW

[9]The proper approach to the issues of both delay and abuse of process was recently and helpfully summarised by Hamblen J in The Owners and/or Bailees of the Cargo of the Ship Panamaz Star v The Owners of the Ship Auk [2013] EWHC 4076 (Admlty) (“The Auk”): As to delay “37. In summary, the authorities provide the following guidance:(1) There are no hard and fast rules. The court has to make a broad judgment having regard to all relevant circumstances and the justice of the case.(2) The relevant circumstances may include the length of, explanation for and responsibility for the delay; whether the Defendant has suffered prejudice as a result and if so how it can be compensated for, and whether the delay is such that it is no longer possible to have a fair trial.(3) A defendant cannot let time go by without taking action so where delay does cause prejudice to him he cannot say that it is entirely the fault of the claimant.(4) In considering what is the just and proportionate order to make the court should have regard to the alternative sanctions to that of striking out provided by the CPR.” As to abuse of process “38. To commence or to continue proceedings which you have no intention to bring to a conclusion may constitute an abuse of process; see Grovit v Doctor [1997] 1 WLR 640: Habib Bank Ltd v Jaffer (The Times on 5 April 2000). 39. As Lord Woolf stated in Arbuthnot Latham Bank Ltd v Trafalgar Holdings [1988] I W.L.R. 1426 at p. 1437:
“Whereas hitherto it may have been arguable that for a party on its own initiative to in effect ‘warehouse’ proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the Claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes.” 40. Inordinate and inexcusable delay alone does not amount to abuse of process. However, it may do so if it involves a wholesale disregard for the rules of court with full awareness of the consequences; see Habib Bank Ltd v Jaffer at [10] per Nourse LJ.” “Whereas hitherto it may have been arguable that for a party on its own initiative to in effect ‘warehouse’ proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the Claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes.”

APPLYING THE LAW

[10]It is abundantly clear that the claimant has no intention whatsoever of pursuing his claim in this case. He has made no effort to progress his claim over the last six months and, having parted company with his solicitors, has made no contact with either the court or the defendants. In breach of the Practice Direction to CPR 54, no skeleton argument or bundle has been filed or served.[11]In short, this claim is moribund and whether the procedural route is categorised as a response to the claimant’s breaches of the relevant Practice Direction and/or his flagrant abuse of the process of the court it is clear that the court’s only sensible response is to strike out the claim and this I unhesitatingly do. Since the claimant cannot be found, I dispense with the need to serve this order on him. The time and resources of the court are far too precious to be wasted either on the perpetuation of claims in which the claimant himself has lost all interest and, I might add, in the further and unnecessary prolongation of my judgment to this effect.

Cited in 1 later judgment