Starred digests: 28 February 2019

The defendants had raised sufficient of an evidential case in open to have a real prospect of success in respect of claims alleging the unlawful detention of the claimants. The Queen’s Bench Division so ruled concerning an application for summary judgment made by certain claimants, who were alleged to have been members or associates of the Libyan Islamic Fighting Group, and who had been detained, pending deportation to Libya on national security grounds. The court ruled, among other things, that there was no binding Court of Appeal, Civil Division, authority which impeded the correct application of R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same[2011] 4 All ER 1[2012] 1 AC 245.

Background

The first five claimants (C1-5) were of Libyan origin and were alleged to have been members or associates of the Libyan Islamic Fighting Group (LIFG), which had been formed in the 1990s in opposition to the regime of Colonel Qadhafi. They sought asylum in the UK. In October 2005, a memorandum of understanding on deportation with assurances (MoU) was concluded with Libya. The claimants were served with notices of intention to deport them, under s 3(5)(a) of the Immigration Act 1971 (IA 1971), on the basis that they posed a national security threat. They were immediately detained. Some of the claimants successfully appealed on the basis that the MoU and the attendant monitoring arrangements were insufficient to protect them if they were deported to Libya. C1-5 were released on bail. Control order proceedings ensued. 

The claimants brought claims (the claims), alleging unlawful detention on the basis that the defendants (the Security Service and others) had allegedly been involved in, and/or had been aware of the circumstances surrounding, the unlawful rendition to Libya and detention and interrogation (under alleged torture by the US and Libyan Security Services) of detainees B and AS, who were allegedly members of LIFG.

The defendants denied that any non-disclosure to the Secretary of State of facts material to the deportation of C1-5 would render unlawful their detention under Sch 3 to IA 1971, and contended that the necessary preconditions for lawful detention had been met in each case. In their open defence, the defendants raised national security issues against C1-5 and the MoU, and contended that the allegations relating to B and AS were irrelevant to the issue of the safety of the return to Libya pursuant to an MoU. 

The claims had been struck out as an abuse of process in earlier proceedings (see[2016] EWHC 769 (QB)), but had been restored on appeal (see [2017] All ER (D) 144 (Oct)). 

Two sets of applications were before the court. The first was an application on behalf of C1-5 to strike out the defence in relation to the claims for false imprisonment and trespass; alternatively, they sought summary judgment. Second, the defendants applied, under s 6 of the Justice and Security Act 2013 (JSA 2013), in relation to the first ten claimants, for a declaration that the present proceedings were proceedings to which a closed material application might be made. 

Issues and decisions

(1) Whether the application for summary judgment should be granted. 

The claimants submitted that it was clear from the defendants’ admitted stance in their closed defence, which was currently put in open, that the decision-maker(s) had not considered critically important evidence relevant to the issue of safety of return to Libya.  The claimants relied on, among other cases, R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same[2011] 4 All ER 1 (Lumba), in which the Secretary of State had applied an unpublished, blanket and, therefore, (in the public law terms) unlawful policy to the claimants. The majority in the Supreme Court in Lumba held that a breach of public law principles could found an action at common law for damages for false imprisonment and that, if it did so, it was unnecessary for a claimant to prove causation. All that had to be established to constitute the completed tort was that the relevant public law breach bore on, and was relevant to, the decision to detain.

The present court considered: (i) the correct approach to the relevant statutory scheme; (ii) the scope of the Lumba principle; and (iii) whether three Court of Appeal, Civil Division, authorities precluded the claims, as the defendants contended. Those three cases were said to be binding authorities for the proposition that, in claims for judicial review involving rights under the European Convention on Human Rights, it was insufficient, for a claimant’s purposes, to demonstrate some flaw in the decision-making process; what had to be shown was that the defendant’s decision had violated the right that was sought to be invoked.

Concerning the statutory scheme, the claimants were liable to deportation under IA 1971 s 3(5)(a), because the Secretary of State, considering them to be a threat to the national security of the UK, was entitled to deem their deportation as conducive to the public good. In such circumstances, the Secretary of State was empowered to make a deportation order against the claimants (see s 5(1)) (see [41] of the judgment).

At the time the claimants’ cases had been considered, the governing immigration rules had been HC395. Para 364 provided that, in considering whether deportation was the right course on the merits, the public interest would be balanced against any compassionate circumstances of the case. Before a decision to deport was reached, the Secretary of State would take into account all relevant factors known to him. Para 364 considered the merits of deportation at the first stage of the decision-making process. Article 3 of the  Convention was not part of the para 364 list. However, that paragraph was subject to para 380 and, in deciding whether to deport an individual at the first stage, the Secretary of State had to address Convention issues (see [43]-[45] of the judgment).

The statutory scheme was not such that administrative detention would always ensue when the Secretary of State decided to deport (see [46] of the judgment). 

 The control order issue could not readily be assimilated or collapsed into the immigration detention issue: it raised a fresh and separate point, arising in the context of a discrete statutory regime. Accordingly, a final ruling on that issue would be deferred (see [48] of the judgment).

There there was no binding Court of Appeal authority which impeded the correct application of Lumba (see [69] of the judgment).

Lumba had held that there could be no distinction between administrative decisions which were unlawful, ultra vires and a nullity, and that decisions which were unreasonable in the Wednesbury sense were comprehended by that unitary principle. On the other hand, minor public law errors – e.g. decisions taken by the wrong grade of official – would not necessarily lead to tort claims because, by analogy with the court’s approach in refusing relief in judicial review proceedings, they could be disregarded (see [50] of the judgment). 

The proper exercise of the power to grant bail was dependent on the existence of a lawful detention. By parity of reasoning, the proper exercise of the power to detain in the instant cases predicated the existence of lawful decisions to deport (see [54] of the judgment). 

Concerning the Court of Appeal authorities, Ullah v Home Office[1994] Lexis Citation 4093 had held that all that was required by IA 1971 Sch 3 para 2 to make detention legitimate was the giving of a notice of intention to make a deportation order, and that a decision made by the Secretary of State in good faith against a person liable to be deported was a decision within the contemplation of the paragraph even if it later appeared that it was a decision which should not have been made or should not have been made without further consideration. Accordingly, the ratio in Ullah, if still binding, was dispositive of both the present application and the claims (see [57], [59] of the judgment). 

However, the Court of Appeal in D v Home Office (Bail for Immigration Detainees and another intervening)[2006] 1 All ER 183 (D) (concerning IA 1971 Sch 2) had ruled that it was not bound by Ullah and that there was nothing to suggest that Parliament had intended to confer immunity from suit on immigration officers who had asked themselves the wrong questions, so that their decision to deprive an immigrant of his or her liberty was a nullity and consequently unlawful. D had further held that there was no reason for a claimant to obtain, first, either a declaration that the detention was unlawful or a quashing order: it was sufficient that the claimant had been unlawfully detained on his authority and had suffered damage as a result. It was clear that, in declining to follow Ullah, that constitution of the Court of Appeal in D had, effectively, been overruling it. D and Ullah could not both be right and, in the circumstances, it was the duty of a first instance judge to apply the subsequent case (D), which the present court did (see [60], [61] of the judgment). 

The defendants had further contended that the present court was bound by two later Court of Appeal authorities which had applied Ullah. In Draga v Secretary of State for the Home Department[2012] All ER (D) 149 (Jun), the claimant had brought an unsuccessful appeal against the Secretary of State’s notice of intention to deport, and  the latter had, therefore, been entitled to rely on it as a lawful decision. Accordingly, the appellate process had amounted to a statutory bar to the claim, not the statutory scheme, as envisaged by the Court of Appeal in Ullah. On that approach, the claimants in the present case were not precluded by Draga, because the relevant notices of intention to deport had not been upheld on appeal (see [64] of the judgment). 

Further, the third Court of Appeal authority, R (on the application of Gaviria-Manrique) v Secretary of State for the Home Department [2016] All ER (D) 161 (Mar) had not established any principle which availed the Secretary of State in the present case (see [68] of the judgment). 

The defendants had further submitted that it was insufficient for the claimants to aver that the decision-maker had failed to take material considerations into account, because that was to allege the sort of procedural error which could not amount to a substantive breach of art 3 of the Convention. That submission was unsound and had to be rejected. The claimants’ case was that the exercise of the discretion to deport them on conducive grounds necessarily engaged questions of safety on return and, as part and parcel of the overall art 3 assessment, critically important information had been excluded from account. There were, therefore, superficial similarities between the present case and the trio of House of Lords decisions referenced in the present judgment. The decision-makers had addressed relevant Convention rights. Further, the court could not see how Lord Dyson’s seminal analysis in Lumba should be truncated in situations where the public law error bit on a Convention right as distinct, for example, from straightforward Wednesbury unreasonableness in a non-Convention context (see [72]-[74] of the judgment).

The court ruled:

Applying settled principles to the facts, the defendants had raised sufficient of an evidential case in open to have a real prospect of success (see [82] of the judgment).

Although the court was compelled to dismiss the claimants’ application under CPR 24, it agreed with their counsel that the defendants’ case on the issue of liability was tenuous. That assessment would inform the court’s future case management directions (see [83] of the judgment).

D v Home Office (Bail for Immigration Detainees intervening) [2005] All ER (D) 253 (Jan) applied; R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same [2011] 4 All ER 1 applied; B (Algeria) v Secretary of State for the Home Department [2018] All ER (D) 52 (Feb) applied; Ullah v Home Office and Another [1994] Lexis Citation 4093 not followed; Draga v Secretary of State for the Home Department [2012] All ER (D) 149 (Jun) distinguished; R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] All ER (D) 244 (May) explained; R (on the application of Gaviria-Manrique) v Secretary of State for the Home Department [2016] All ER (D) 161 (Mar) explained; R (on the application of Nasseri) v Secretary of State for the Home Department [2009] 3 All ER 774 considered; DN (Rwanda) v Secretary of State for the Home Department [2018] 3 All ER 772 considered; R (on the application of DSD and others) v Parole Board of England and Wales [2018] All ER (D) 180 (Mar) considered; Parker v Chief Constable of Essex Police [2018] All ER (D) 68 (Dec) considered; Secretary of State for the Home Department v SM (Rwanda) [2019] All ER (D) 16 (Jan) considered.

(2) The court considered whether a declaration under JSA 2013 s 6 should be made, particularly where issues of Lumba causation and quantum remained live.

In all the circumstances, a brief closed judgment would be issued in line with the court’s powers under JSA 2013 s 6(2)(b) and the overriding objective (see [84] of the judgment).

Tom de la Mare QC, Charlotte Kilroy and Helen Law (instructed by Birnberg Peirce) for the claimants.

Lisa Giovannetti QC, Rory Dunlop and Stephen Kosmin (instructed by Government Legal Department) for the defendants.

Angus McCullough QC, Tom Forster QC, Jennifer Carter-Manning and Rachel Toney (instructed by SASO) as Special Advocates.

Carla Dougan-Bacchus - Barrister.

A person, such as the driver of the car involved in the accident with the respondent, who was not just anonymous, but could not be identified with any particular person, could not be sued under a pseudonym or description, unless the circumstances were such that the service of the claim form could be effected or properly dispensed with. The Court of Appeal, Civil Division, had erred in allowing the respondent permission to amend the claim form so as to sue an unnamed defendant. Accordingly, the Supreme Court allowed the appellant insurer’s appeal, set aside the order of the Court of Appeal, and reinstated the district judge’s order.

Background

The respondent was injured when her car collided with a Nissan Micra. The registration number of the Micra was recorded, but the driver made off without stopping or reporting the accident to the police and had not been heard of since. The car was insured under a policy issued by the appellant insurer to ‘NB’, whom the insurer suspected was a fictitious person. The registered keeper of the Micra (NH) was not the driver and declined to identify the driver. Neither NH nor the driver were insured under the policy to driver the car.

Although the respondent had an alternative right against the intervener (the Motor Insurer’s Bureau), she elected to sue NH for damages. The proceedings were amended to add a claim against the insurer for a declaration that it would be liable to meet any judgment obtained against NH. The insurer denied liability on the ground that there was no evidence that NH had been the driver at the relevant time. In response, the respondent applied to amend her claim to substitute for NH, ‘the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013’. The district judge dismissed the application for amendment and entered summary judgement for the insurer. The judge dismissed the respondent’s appeal. However, on further appeal to the Court of Appeal, Civil Division the respondent’s application to amend the claim form was allowed. The court directed, under CPR 6.15, that service on the insurer should constitute service on the driver and that further service on the driver should be dispensed with. It then gave judgment against the driver, as described, recording in the order that the insurer had accepted that it was liable to satisfy the judgment. The insurer appealed to the Supreme Court.

Appeal allowed.

Issues and decisions

(1) Whether, and in what circumstances, it was permissible to sue an unnamed defendant.

 A person, such as the driver of the Micra in the present case, who was not just anonymous, but could not be identified with any particular person, could not be sued under a pseudonym or description, unless the circumstances were such that the service of the claim form could be effected or properly dispensed with (see [26] of the judgment). 

Whether or not the requirement of CPR 7A PD4.1 that the claim form should state the defendant’s full name admitted of a discretion on the point was not the critical question. The critical question was what, as a matter of law, was the basis of the court’s jurisdiction over parties, and in what (if any) circumstances could jurisdiction be exercised on that basis against persons who could not be named (see [12] of the judgment). 

The appeal was primarily concerned with the issue or amendment of the claim form. However, the legitimacy of issuing or amending a claim form so as to sue an unnamed defendant could properly be tested by asking whether it was conceptually (not just practically) possible to serve it (see [14] of the judgment). 

It was not possible to identify an unknown person simply by referring to something that he had done in in the past. ‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013’ did not identify anyone. The impossibility of service in such a case was due not just to the fact that the defendant could not be found, but to the fact that it was not known who the defendant was. That was a more serious problem than the courts, in their more recent decisions, had recognised. Justice in legal proceedings had to be available to both sides. It was a fundamental principle of justice that a person could not be made subject to the jurisdiction of the court without having such notice of the proceedings as would enable him to be heard (see [16], [17] of the judgment). 

In ordering alternative service of the insurer in the present case, the Court of Appeal had not had regard to the principle that the whole purpose of service was to inform the defendant of the contents of the claim form and the nature of the claimant’s case. Subject to any statutory provision to the contrary, it was an essential requirement for any form of alternative service that the mode of service should be such as could reasonably be expected to bring the proceedings to the defendant’s attention (see [20], [21] of the judgment). 

In the present case, alternative service on the insurer could not be expected to reach the driver of the Micra. It would be tantamount to no service at all, and should not therefore have been ordered unless the circumstances had been such that it would be appropriate to dispense with service altogether (see [24] of the judgment). 

Kreglinger v S Samuel and Rosenfeld, Re Merten’s Patents [1914-15] All ER Rep 918 applied; Abela v Baadarani [2013] All ER (D) 249 (Jun) applied; Abbey National plc v Frost [1999] All ER (D) 105 doubted; Jacobson v Frachon [1927] 44 TLR 103 considered; Murfin v Ashbridge and Martin [1941] 1 All ER 231 considered; Gurtner v Circuit [1968] 1 All ER 328 considered; Clarke v Vedel [1979] RTR 26 considered; Dresser UK Ltd v Falcongate Freight Management Ltd, The Duke of Yare [1992] 2 All ER 450 considered; Anderton v Clwyd County Council [2002] All ER (D) 43 (Jul) applied; Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] All ER (D) 349 (May) considered; South Cambridgeshire District Council v Gammell; Bromley London Borough Council v Maughan [2005] All ER (D) 373 (Oct) considered; Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation and Publication of the website www.solicitorsfromhelluk.com [2015] All ER (D) 78 (Sep) considered; Smith v Pseudonym and Others (2016) [2016] All ER (D) 224 (Jul) considered; Barton v Wright Hassall LLP [2018] All ER (D) 109 (Feb) considered.

(2) Whether, if it was decided that it was not permissible to sue an unnamed defendant, that result was inconsistent with Directive (EC) 2009/103 (the Sixth Directive).

The respondent argued that: (i) the Sixth Directive required a direct right against the insurer on the driver’s underlying liability, and not simply a requirement to have the insurer satisfy a judgment against the driver; and (ii) recourse to the Motor Insurer’s Bureau was not treated by the Sixth Directive as an adequate substitute (see [27] of the judgment). 

The right that the respondent asserted was a right to sue the driver without identifying him or observing rules of court designed to ensure that the was aware of the proceedings. Nothing in the Sixth Directive required the UK to recognise a right of that kind (see [29] of the judgment). 

In reality, the complaint was not about the extent of the Motor Insurer’s Bureau’s coverage, which unquestionably extended to the case. The complaint was that it was the Motor Insurer’s Bureau which was involved and not the insurer. However, that was because the insurer was liable only to satisfy judgments. It was true that the measure of the Motor Insurance Bureau’s indemnity was slightly smaller than that of the insurer. However, in that respect it was consistent with the Sixth Directive (see [30] of the judgment). 

Decision of Court of Appeal, Civil Division [2017] EWCA Civ 366 Reversed.

Stephen Worthington QC and Patrick Vincent (instructed by Keoghs LLP) for the insurer.

Benjamin Williams QC, Ben Smiley and Anneli Howard (instructed by Bond Turner Solicitors) for the respondent.

Tim Horlock QC and Paul Higgins (instructed by Weightmans LLP, Liverpool) for the Motor Insurers’ Bureau, as intervener.

Paul Mclachlan - Barrister.