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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Eco-Power Co UK Ltd, R (on the application of) v Transport for London [2010] EWHC 1683 (Admin) (21 May 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/1683.html Cite as: [2010] ACD 69, [2010] EWHC 1683 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF ECO-POWER CO UK LIMITED | Claimant | |
v | ||
TRANSPORT FOR LONDON | Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr M Chamberlain (Instructed By Transport For London) Appeared On Behalf Of The Defendant
____________________
Crown Copyright ©
The Background
"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."
"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.
"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
(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 theHuman 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.
"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
"There seems no obvious reason why estoppels on similar subsidiary issues could not arise in applications for judicial review."
"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."
(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
"...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.
"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).
(2) The Claim in Respect of the Decision to Approve the Modified System
(3) The Claim in Respect of the Withdrawal of Approval for the Original Systems
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."
(4) The Claim for Misfeasance in Public Office
(5) The Claim for Malicious Falsehood
"The claimant believes that these falsehoods were published maliciously and with a view to causing pecuniary harm."
Conclusion
proceedings, subject to permission being granted.
MR JUSTICE SIMON: But it is not the first time he has been shut out.