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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Tovey & Ors v Ministry of Justice [2011] EWHC 271 (QB) (18 February 2011) URL: https://www.bailii.org/ew/cases/EWHC/QB/2011/271.html Cite as: [2011] HRLR 17, [2011] EWHC 271 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ANTHONY TOVEY PAUL HYDES and Others |
Claimants |
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- and - |
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MINISTRY OF JUSTICE |
Defendant |
____________________
Hearing date: 9th. February 2011
____________________
Crown Copyright ©
Mr Justice Langstaff :
Introduction
The Present Claims by Serving Prisoners: Procedural History
"38.2(1) A claimant may discontinue all or part of a claim at any time.
(2) However –
"(c) where there is more than one claimant, a claimant may not discontinue unless –
(i) every other claimant consents in writing; or
(ii) the court gives permission."
"any claims that an individual had been denied the right to vote by virtue of s.3 of the Representation of the People Act 2003 (sic) or s.3 of the Representation of the People Act 1983…"
And
"any claim that such denial of the right to vote is incompatible with Article 3 of the First Protocol to the European Convention on Human Rights, as given effect by the Human Rights Act 1998, and that the Secretary of State has failed to respect the rights of the Claimant in that he has failed to implement the Grand Chamber judgment of Hirst v United Kingdom (No.2) and has deprived the Claimant of the opportunity of casting his vote in a secret ballot";
Or
"any claim for damages or a declaration arising out of the same" should be consolidated under case number HQ10X03312 – Anthony Tovey's claim.
"The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule…"
"(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(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; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
Legal Representation and Adjournment
(a) Mr. Hydes had not asked the court to adjourn so that he might obtain legal representation. He had had time within which he could have done so, had he wished it;
(b) Adjournment seemed unlikely to secure representation when it appears from the history I have set out above that the LSC had decided not to fund any of the claimants,
(c) The position of any prisoner affected by my decision in Mr. Hydes' case is protected by the mechanism described above in paragraph 17 if I should find against his argument – the four weeks provided for is time within which he should be able to obtain legal advice and if necessary a promise of representation which would permit a court to allow him further time if appropriate.
(d) It was generally desirable in application of the overriding objective in CPR Part 1 to proceed with expedition, and it was both likely to save costs and the resources of the court, and give greater certainty to other potential claimant prisoners waiting in the wings as to whether they too should incur their own expense, and put the State to cost. These factors counterbalance the imbalance of representation.
(e) Many of the arguments have been addressed consistently by the courts of Great Britain and Northern Ireland, with the advantage of legal representation, so that I can be reasonably confident that the court can identify the relevant arguments.
The Law
"(2) The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing … the claim"
Alternatively, the Secretary of State sought summary judgment in his favour on the claims. Part 24 provides, so far as material:
"24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or……..
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
"(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act."
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament
(………)
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6) "An act" includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order."
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility."
"(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence….. is legally incapable of voting at any parliamentary or local government election."
"(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).
(2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region, and—" (various matters are then set out, which are immaterial because they are predicated on entitlement to vote in a parliamentary election, and thus throw the reader back to the s.3 of the 1983 Act)…."
(subsections (3) – (5) deal with particular categories of person, none of which covers the case of a serving prisoner)."
"28. The interpretive obligation of the courts under section 3 of the 1998 Act was the subject of an illuminating discussion in Ghaidan v Godin-Mendoza [2004] 2 AC 557. The majority opinions of Lord Nichols, Lord Steyn and Lord Roger of Earlsferry in that case (which Baroness Hale of Richmond agreed) do not lend themselves easily to a brief summary. But they leave no room for doubt on four important points. First, the interpretive obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 and Bellinger v Bellinger (Lord Chancellor Intervening) [2003] 2 AC 467. In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110 to 113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplement the simple test enacted in the Act "so far as is possible to do so…" While the House declined to try to formulate precise rules (para 50), it was that cases in which section 3 could not be used would in practice be fairly easy to identify."
"..we do not accept that an interpretative exercise….is legitimately open to us in this case. In our opinion to read down s. 3(1) of the 1983 Act as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be, in the phrase used by Lord Nicholls of Birkenhead in Re S (Minors) [2002] UKHL 10 to depart substantially from a fundamental feature of the legislation." (para.27)
The Court declared the provisions of the 1983 Act incompatible with Convention rights.
a. If the section was open to such an approach, it could not sensibly be interpreted here as providing for compensation. The words do not permit anything to be read in or reduced so that a failure to introduce a proposal for legislation, or make primary legislation, is not excluded from the scope of the word "act": sub-section (6) is so clear that it cannot be read in any other way;
b. But the section is not even open to the interpretative obligation in s.3. This is because that obligation derives from the self-same Act as contains s.6. There is no warrant to apply s.3 to s.6, as if one section were predominant over the other;
c. It is also because the Act itself gives authority to the Convention in UK law, specifically within the limits set by that Act, of which s.6(6) is one;
d. The section is not, in any event, that which prevents the claimant having the vote, which is the foundation of his claim. Its only relevance to the claimant's case is that it prevents him suing for compensation, not for a breach of that right but a failure to introduce legislation to remedy it.
"The Court has considered below the applicant's claims for his own costs in the proceedings. As regards non-pecuniary damage, the Court notes that it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case."
Observations
Conclusions
Costs
"In these circumstances the judge decided to make a wholly novel order. In its detail it is of some complexity, but for present purposes it is only necessary to summarise its general effect. This was that, as from 8 June 1987, where particular plaintiffs incurred costs either personally or through the legal aid fund in pursuing lead actions, or thereby became liable to pay costs to the defendants, every other plaintiff should contribute rateably on a per capita basis. Those who have practised in the Commercial Court, of which Hirst J. is one of the judges, will recognise the age old respectability of such an order, based as it clearly is upon the Rhodian Law, the Rolls of Oleron and the maritime law of general average. But antiquity, respectability and indeed fundamental fairness is one thing — the power to make such an order is quite another. And here we come to the nub of this appeal. Before coming to that issue I should add that the judge recognised that in the months that lie ahead before a settlement or a final hearing circumstances might change. Thus some of the plaintiffs might decide to abandon their claims, so that instead of each plaintiff having to contribute 66 pence for every £1,000 of the costs of the lead plaintiffs (on the basis of 1,500 plaintiffs), the contribution might rise significantly. And other unforeseeable eventualities might arise making this order unfair or unduly burdensome. He therefore gave all the parties liberty to apply to vary the order if circumstances changed. Finally he rightly stressed that his order in no way fettered the discretion of the trial judge to make special orders as to costs between the plaintiffs or individual plaintiffs and the defendants or individual defendants. In essence what he was doing was providing for contribution as between plaintiffs in respect of costs incurred by them or liability for costs imposed upon them, subject always to retaining a right to vary that order if justice so required. He also recognised that some plaintiffs might not wish to accept even this very small percentage of what in total could be a very considerable liability and he therefore ordered that any plaintiff who wished to abandon his action could do so, each party bearing its own costs of that discontinuance if he did so before 8 June 1987."
"The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid"
A court must have regard to the conduct of the parties, amongst other considerations (44.3(4)(a)).
Further Miscellaneous Matters
Footnote
Note 1 See e.g. paragraph. 2 of the judgment of Laws LJ in Chester [Back] Note 2 One having been made in Smith v Scott. [Back] Note 3 17th. February from Joanne Clement [Back] Note 4 Source: costs submissions from Joanne Clement of 17 February 2011. [Back]