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You are here: BAILII >> Databases >> British Indian Ocean Territory Judgments >> The Commissioner for the British Indian Ocean Territory v VT & Ors, R (On the Application Of) [2024] BIOT CA (Civ) 1 (24 May 2024) URL: https://www.bailii.org/io/cases/BIOT/2024/CA1.html Cite as: [2024] BIOT CA (Civ) 1 |
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ON APPEAL FROM THE SUPREME COURT
MARGARET OBI, SITTING AS AN ACTING JUDGE
BIOT SC/15/2023 AND BIOT SC/16/2023
United Kingdom |
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B e f o r e :
THE HON. MR JUSTICE TOM LITTLE K.C., JA
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| THE COMMISSIONER FOR THE BRITISH INDIAN OCEAN TERRITORY |
Proposed Appellant |
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| - and - |
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| THE KING (ON THE APPLICATION OF VT & ORS) |
Proposed Respondents |
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The 1st proposed respondent as a litigant in person
Mr. Chris Buttler K.C. and Mr. Jack Boswell (instructed by Messrs Duncan Lewis) for the 2nd-6th proposed respondents
Mr. Ben Jaffey K.C. and Ms. Natasha Simonsen (instructed by Messrs Leigh Day) for the 7th-12th proposed respondents
Hearing dates: 17 May 2024
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Crown Copyright ©
This judgment was handed down remotely at 10:30 UK time on 24 May 2024 by circulation to the parties or their representatives by e-mail.
Lane, JA, Nott, JA and Little K.C. JA:
Introduction
Substantive Claim
The Application for special leave to Appeal
Procedural Chronology
(1) Justice should be done and seen to be done. Public confidence enhanced by transparency and accountability. Conducting in person hearing is an important component. Could be part of hearing.
(2) Whether Cs are detainees will be assisted by site visit because of unique features of case.
(3) Practical involvement of Claimants likely to be enhanced if can communicate with their legal representatives in person. (Core Bundle p70)
"There are practical considerations, but not reasons for hearings [not] to take place on DG. I have no doubt that appropriate arrangements could be made for a suitable number of individuals to travel to Diego Garcia, and for a suitable venue. Practical considerations affecting court are delay – not costs/travel. Hearing listed before I had sight of papers, on understanding that the Court needed to sit urgently. If there is a site visit, it makes sense for that to take place before oral evidence heard. There is no possibility of the Court being able to sit in DG at any time during the w/c 18 March. In reality, sitting in DG will mean that current dates will have to be vacated. Even if prioritised for judicial availability, support. May be months rather than weeks. In principle, this Court is willing to sit in Diego Garcia. Subject to observations by counsel, dates can be communicated by the end of the week. This is on the understanding that the benefits of sitting in DG may be outweighed by the disadvantages of significant delay." (Core Bundle p70-71)
Legal Framework
The Territory
The Commissioner, usually a senior civil servant in the Foreign Commonwealth and Development Office, carries out the function of both government and legislature in the Territory.
Jurisdiction
(3) and (4) of this section and to section 4, the law to be applied as part of the law of the Territory shall be the law of England as from time to time in force in England and the rules of equity as from time to time applied in England: Provided that the said law of England shall apply in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary.'
(1) Every application to the Court, other than an application included in sub-rule (2), shall be heard by a single Judge: Provided that any such application may be adjourned by the Judge for determination by the Court.
(2) This rule shall not apply –
(a) to an application for leave to appeal…'
Supreme Court Rules Hearing Venue
'(4) The Supreme Court may, as the Chief Justice may direct, sit in the United Kingdom and there exercise all or any of its powers or jurisdiction in any civil or criminal proceedings.
(5) Subject to subsection (6), the Chief Justice may make a direction under subsection
(4) where it appears to him, having regard to all the circumstances of the case, that to do so would be in the interests of the proper and efficient administration of justice and would not impose any unfair burden on any party to the proceedings.
(6) A direction under subsection (4) may be made at any stage of the proceedings or when it is sought to institute the proceedings and may be made on the application of any party to the proceedings or of any person who seeks to be or whom it is sought to make such a party or of the Chief Justice's own motion'
Applicability of CPRs
Where no other provision is made by these rules or by any Ordinance, rule or regulation in force in the Territory, the rules of court that apply for the time being in England in the High Court and the practice followed in that court shall be observed in all civil proceedings in the court, so far as they may be applicable and with such modifications as may be necessary to adapt them to the circumstances of the Territory.'
Overriding Objective
'(1) These Rules are a 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 –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;
(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;
(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.'
Application for Leave/Special Leave to Appeal
'(1) In civil matters an appeal shall lie to the Court of Appeal –
(a) as of right, from any final judgment of the Supreme Court, where the matter in dispute on the appeal amounts to or is of the value of £5,000 or upwards, or where the appeal involves, directly or indirectly, some claim or question to or respecting property, or some civil right, amounting to or of the value of £5,000 or upwards;
(b) at the discretion of the Supreme Court from any other judgment of the Court, whether final or interlocutory if, in the opinion of the Court, the question involved in the appeal is one which, by reason of its general or public importance, or otherwise, ought to be the subject-matter of an appeal; and
(c) should the Supreme Court refuse to grant leave to appeal under the preceding paragraph, in pursuance of special leave to appeal granted by the Court of Appeal.'
'(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.'
Striking Out
'A person on whom a notice of appeal has been served may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time.'
Time limits Leave to Appeal
'In civil matters –
(a) where, under section 10(1)(b) of the Courts Ordinance 1983, an appeal lies to the Court with the leave of the Supreme Court, application for such leave may be made informally at the time when the decision is given against which it is desired to appeal or within 21 days thereafter;
(b) where, under section 10(1)(c) of that Ordinance, an appeal lies to the Court by special leave of the Court, application for such leave shall be made within 42 days of the refusal of leave by the Supreme Court.'
Appeal
'Notice of appeal.
(1) Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in duplicate with the Registrar of the Supreme Court.
(2) Every such notice shall be so lodged within 42 days of the date of the decision against which it is desired to appeal.
(3) Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the decision, shall specify the part complained of, shall state the address for service of the appellant and shall state the names and addresses of all persons intended to be served with copies of the notice.
(4) When an appeal lies only with leave, it shall not be necessary to obtain such leave before lodging the notice of appeal.
(5) Where it is intended to appeal against a decree or order, it shall not be necessary that the decree or order be extracted before lodging the notice of appeal.
(6) A notice of appeal shall be substantially in the Form CA2 in the First Schedule and shall be signed by or on behalf of the appellant.'
Calculation of Time
'Any period of time fixed by these Rules or by any decision of the Court for doing any act shall be reckoned in accordance with the following provisions –
(a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or that act or thing is done;
(b) if the last day of the period is a Saturday or Sunday, or a public holiday in the place where the act is to be done (which days are in this rule referred to as excluded days) the period shall include the next following day, not being an excluded day;
(c) where any act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day.'
The ambit of an Appeal and the admission of new evidence on Appeal
'(1) Every appeal will be limited to a review of the decision of the lower court unless—
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive—
(a) oral evidence; or
(b) evidence which was not before the lower court.'
Submissions
(i) Directing that a site visit should take place to inform the final hearing; and
(ii) Directing that the two day hearing should thereafter take place in Diego Garcia rather than in London.
(a) The Judge's balancing exercise when determining the hearing venue was careful, principled and neither arguably wrong in law nor irrational;
(b) Her decision to hold a site visit was just and proper given the key factual dispute as to the conditions on the island which are on any view unique; as the finder of fact, seized of the evidence, it was clearly open to the Judge to find that she would be assisted by seeing those conditions for herself;
(c) Once the decision was made to hold a site visit, the cost differential between (i) a two day hearing immediately after a site visit in Diego Garcia as against (ii) a hearing in the UK was substantially reduced;
(d) The Judge cannot be criticised for failing to address arguments that were not taken before her, such as the Commissioner's submission that the Judge might conduct a site visit in the absence of the parties. Such a visit would, in any event, contravene the principle in Goold v Evans & Co [1951] 2 T L R 1189 (affirmed by Leveson LJ in the Divisional Court in M v DPP [2009] 2 Cr App R 12 §§19-20).
(e) The Respondents are witnesses in their claims, and, although the Commissioner has indicated he does not wish to cross-examine them, they have made witness statements giving accounts of, for example, collective punishment that are not accepted by the Commissioner, and which will be the subject of oral evidence from the Deputy Commissioner. The Respondents' representatives have struggled to take instructions from their clients as a result of the time difference and the conditions under which the Respondents are accommodated, with very limited access to mobile phones;
(f) The Judge had carefully considered the evidence before her, including the Commissioner's evidence surrounding cost and flight availability; there is no good reason to depart from CPR 52.21(2) and allow the Commissioner to rely on further evidence that was previously available and that does not substantially change the position in any event (see also Ladd v Marshall [1954] 3 All ER 745)
Analysis and Judgment
New Evidence
(i) The Commissioner had placed evidence before Judge Obi relating to cost which, while not as detailed, gave projected costs to substantially the same effect, including the cost of a charter flight.
(ii) Mr. Dholakia's witness statement does not deal at all with the legal costs, which will likely dwarf travel costs. By her Order dated 30 April 2024, Judge Obi approved the attendance in person of "up to two solicitors, two counsel and a case worker for each of the two groups of Claimants." Whether five lawyers per legal team might be thought to be excessive, that is not a matter for this Court as Judge Obi's Order of 30 April 2024 is not subject to appeal.
(iii) If the Commissioner now contends that previously unavailable evidence substantially changes the position regarding cost or viability, then the proper course is for the Commissioner to apply to the Supreme Court pursuant to s.13(6) BIOT (Constitution) Order 2004 for a direction that the hearing be moved to the UK (in other words, for the Supreme Court to vary its own direction).
(iv) There is no reason in the interests of justice to depart on appeal from CPR 52.21(2).
Respondents' Application to Strike Out as Out of Time/Procedurally Deficient
Application for Special Leave
Decision re Site Visit
Decision re Hearing Venue
(i) To direct the substantive hearing to be held in part in London and in part in Diego Garcia comprising a site visit;
(ii) To direct the substantive hearing to be held wholly in Diego Garcia.
§18, "Cost is not a trump card; it is one factor amongst others. The overriding objective is a fair hearing." She did not specifically refer to the proportionality of the costs as per CPR 1.1(2). Nonetheless, it is clear from reading the note of her decision of 19 February 2024 and the Order dated 11 April 2024 that Judge Obi had proportionality, the costs involved, the importance of the case, the complexity of the issues, the financial position of each party and the equal participation of each party firmly in mind throughout. She found unequivocally that the Court would be assisted by a site visit, that transparency was key, and that the involvement of the claimants would be enhanced with the ability to communicate directly with their legal representatives.
of fact and law and which, at their core, concern the liberty of the individual, and found that the balance came down in favour of holding the substantive hearing in the Territory. In our opinion, that was a decision wholly within the range of possible outcomes reasonably available to her.