CIVIL PROCEDURE

Claim forms - non- compliance - service by fax - - cargo claims - time-limits

Asia Pacific (HK) Ltd & Ors v (1) Hanjin Shipping Co Ltd (2) Owners of the MV Hanjin Pennsylvania: QBD (Comm) (Mr Justice Christopher Clarke): 7 November 2005



The claimant cargo-owners (C) sought a declaration that the claim form had been served on the defendant shipowners (H) within the time prescribed by rule 7.5 of the Civil Procedure Rules (CPR). C claimed in respect of lost and damaged cargo as a result of an explosion and fire on board H's vessel.


Several cargo-owners, including C, issued proceedings against H, which began a limitation action and obtained a limitation decree. C instructed its solicitors to serve the claim form. H's solicitors asked the cargo claimants for confirmation that proceedings had been issued, whether the proceedings could be consolidated, and confirmed that they had instructions to accept service on behalf of H. C's solicitors replied by fax, and attached a copy of the claim form issued by C.


After the four-month period for serving the form under rule 7.5(2) of the CPR had expired, H took the point that C's form had never been served.


H submitted that service involved the delivery of a document in circumstances that conveyed to the objective but knowledgeable observer that delivery was intended by way of service, and not for information only, and that C's fax would have conveyed to any reasonable solicitor that the form was not sent by way of service.


C submitted that there was no requirement that the fax should use the words 'by way of service', that the faxed letter together with its enclosure constituted service of the form, and that it did not matter that no response pack was served, and that what was served was the claimant's copy of the form.


Julian Flaux QC, Jo Cunningham (instructed by Mays Brown) for the claimants; Steven Berry QC (instructed by Hill Taylor Dickinson) for the defendants.


Held, the dispatch of the fax did constitute service of the form. The CPR did not define what was meant by service other than by prescribing how it might be done. The common thread was that the party serving a document delivered it into the possession or control of the recipient, or took steps to cause it to be so delivered.


The substance of the matter was that C had delivered to H, by a permitted method of service, a form, and thereby not only brought to the attention of H the fact that the form had been issued but also provided them with a copy of it. C did not indicate that the form was provided to H for information only, or that although delivered it was not to be regarded as served.


When a form was delivered to the recipient in a manner provided for by the rules, it was served unless it was made clear by the person who delivered it that, while he was delivering the form by such a method, he was not in fact serving it. The facts that no response pack was served, that the claim form was marked 'Claimants Copy', and that the fax did not state that the form was faxed 'by way of service' did not demonstrate that no service was intended at all. If the recipient did not know whether a document had been provided for information only, he had only to ask the sender if that was so. Declaration granted in favour of claimant.





IMMIGRATION


Asylum seekers - human rights - destitution - denial of basic necessities of life - legitimate government policy

R (on the application of Adam) v Secretary of State for the Home Department; R (on the application of Limbuela) v Secretary of State for the Home Department; R (on the application of Tesema) v Secretary of State for the Home Department: HL (Lords Bingham of Cornhill, Hope of Craighead, Scott of Foscote, Brown of Eaton-under-Heywood, Baroness Hale of Richmond): 3 November 2005


The appellant secretary of state appealed against the dismissal of his appeal ([2004] EWCA Civ 540; [2004] QB 1440) against successful applications for judicial review by the respondent asylum seekers (R), granting them relief against the secretary of state's decision not to provide them with support.


R had all claimed asylum on the day of their arrival in the UK, or on the day after. The secretary of state had decided that R had not made their claims for asylum as soon as reasonably practicable after their arrival in the UK, so they were excluded from conventional support under part Vl of the the Immigration and Asylum Act 1999, by section 55(1) of the Nationality, Immigration and Asylum Act 2002.


Several of R had been forced to sleep on the street as a result of receiving no support. No challenge was made to the secretary of state's decision that asylum had not been claimed as soon as reasonably practicable.


The issue was whether the secretary of state was nevertheless obliged by section 55(5)(a) of the 2002 Act to provide support for R under part VI of the 1999 Act, for the purpose of avoiding a breach of their rights under article 3 of the European Convention on Human Rights.


Nigel Giffin QC, John-Paul Waite, Kate Grange (instructed by the Treasury Solicitor) for the appellant; Nicholas Blake QC, Christopher Jacobs (instructed by White Ryland for Limbuela and Tesema, and HCL Hanne & Co for Adam) for the respondents.


Held, the key to a proper understanding of section 55(5)(a) was its use of the word 'avoid' in the phrase 'avoiding a breach'. The purpose of this section was to enable the secretary of state to exercise his powers to provide support under sections 4, 95 and 98 of the 1999 Act, and accommodation under sections 17 and 24 of the 2002 Act, before the ultimate state of inhuman or degrading treatment was reached.


Once that stage was reached, the secretary of state was at risk of being held to have acted in a way that was incompatible with the asylum seeker's convention rights. Section 55(5)(a) enabled the secretary of state to step in before that happened, so that he could 'avoid' being in breach.


Where the inhuman or degrading treatment or punishment resulted from acts or omissions for which the state was directly responsible, there was an absolute obligation on states to refrain from such conduct. The real issue was whether the state was properly to be regarded as responsible for the conduct that was prohibited by article 3. Ill-treatment had to maintain a minimum level of severity if it were to fall within 'inhuman and degrading treatment or punishment' (Pretty v United Kingdom [2002] 35 EHRR 1 considered). Treatment was inhuman or degrading if, to a seriously detrimental extent, it denied the most basic needs of any human being. There was no more exacting test where the treatment or punishment was the result of legitimate government policy.


The decision by the secretary of state to withdraw support from someone who would otherwise qualify for support under section 95 of the 1999 Act because he was, or was likely to become, destitute was an intentionally inflicted act for which the secretary of state was directly responsible. He was also directly responsible for all the consequences that flowed from it, bearing in mind that asylum seekers in R's position were prohibited from employment (R (on the application of Q) v Secretary of State for the Home Department [2003] EWCA Civ 364; [2003] HRLR 644 considered).


The withdrawal of support would not in itself amount to treatment that was inhuman or degrading. But it would do so once the margin was crossed between destitution within the meaning of section 95(3) and the condition that resulted from inhuman or degrading treatment within the meaning of article 3.


The test for whether the margin was crossed was whether the treatment to which the asylum seeker was being subjected, by the entire package of restrictions and deprivations that surrounded him, was so severe that it could properly be described as inhuman or degrading treatment within the meaning of article 3. There was no doubt that the threshold might be crossed if a late applicant for asylum with no means and no alternative source of support, unable to support himself, was, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. As soon as an asylum seeker made it clear that there was an imminent prospect of a breach of article 3 because the conditions that he was having to endure were on the verge of reaching the necessary degree of severity, the secretary of state had the power under section 55(5)(a), and the duty under section 6(1) the Human Rights Act 1998, to act to avoid it.


In each of these cases, there had been sufficient evidence to justify the conclusion that there was an imminent prospect that the way R were being treated by the secretary of state, in the context of the entire regime to which they were being subjected by the state, would lead to a condition that was inhuman or degrading. Appeals dismissed.





FAMILY


Care orders - children - discharge - jurisdiction - procedural irregularity - substitution of orders

NP v (1) South Gloucestershire County Council (2) MLC (a child) by his guardian: CA (Civ Div) (Lords Justice Laws, Wall): 10 November 2005


The appellant mother sought permission to appeal against the judge's refusal to discharge a final care order in relation to her son (M). The mother was 15 years old when M was born and was herself subject to a care order.


The local authority brought care proceedings in relation to M two months after he was born. A care plan was instituted and the mother and M were placed in a mother-and-baby unit.


A final hearing of the proceedings took place in December 2004, at which a final care order was made by consent that the mother and M's placement were to continue and, if sufficient progress were not made, an adoptive placement would be sought for M. He was removed from his mother's care in January 2005.


The mother subsequently applied to discharge the order. The judge, hearing that application in September 2005, found that the situation did look unfair to the mother, as M had been removed without any warning, but that the position that had existed when the final order was made remained, as nothing had changed to enable the court to discharge the order, and there was no evidence that it was in M's interests to discharge it.


In October 2005, the mother issued an application seeking relief under section 7(1)(b) of the Human Rights Act 1998. The mother submitted that the judge was wrong to dismiss her application for discharge of the care order, and should have either discharged it and made an interim order, or adjourned the application; the judge's decision was unjust because of a serious irregularity in that he failed, through no fault of his own as it had not been raised by the mother at the hearing, to consider remedies under the Act.


Robin Tolson QC (instructed by Foster & Partners) for the appellant; Stephen Cobb QC, Elizabeth Hudson (instructed by the local authority solicitor) for the first respondent; Stephen Cobb QC, Judi Evans (instructed by Mowbray Woodwards) for the second respondent.


Held, the judge had been correct to dismiss the application to discharge the order for the reasons he gave. No other course was properly open to him. A judge hearing an application under section 39 of the Children Act 1989 did not have jurisdiction, if he decided to discharge it, to substitute an interim order.


Section 39(4) of the 1989 Act plainly defined and limited the court's jurisdiction. If the court was minded to discharge the care order, the only order under part IV of the Act it could substitute was a supervision order. That construction was supported by section 38 of the Act.


The application to discharge an order was manifestly not an application for an order. It was equally clear that the court could not give a direction under section 37 of the 1989 Act in an application to discharge an order, as the court was plainly not deciding that it might be appropriate to make an order in relation to the child.


No criticism could be made of the judge for not adjourning the application as no application had been made to him for an adjournment.


He had been entitled to come to his decision after hearing the evidence, and there was no good reason for him to adjourn the application.


There was no serious procedural or other irregularity in the proceedings. When the application to discharge the order was before the judge, the mother had not brought proceedings under the 1998 Act.


Accordingly, she had not fulfilled the conditions in rule 10.26(2) of the Family Proceedings Rules 1991. Moreover, it was not open to her at this point to take such a fundamental point that had not been before the judge.


It was not open to her to attack the judge for properly refusing to address something that had not been before him. The judge had applied the correct test of whether it was in M's best interests for the order to be discharged, and had reached the right conclusion, as there was abundant evidence that it was still required to protect M's best interests. Permission refused.





LANDLORD AND TENANT


Administrative law - real property - error of law - judicial review - jurisdiction - Lands Tribunal - leasehold valuation tribunals - permission to appeal - service charges

R (on the application of Sinclair Gardens Investments (Kensington) Ltd) (appellant) v Lands Tribunal (respondent) & (1) Manuela Da Graca (2) Timothy O'Keefe (interested parties): CA (Civ Div) (Lords Justice Auld, Laws, Neuberger): 8 November 2005


The appellant company (S) appealed against the decision ([2004] EWHC 1910 (Admin)) to refuse its application for judicial review of the Lands Tribunal's refusal to grant permission to appeal from a determination of the leasehold valuation tribunal (LVT).


S was the owner of a property divided into flats. The lessees of two flats had challenged S's service charge expenditure by way of application to the LVT. It had found that damp proofing the basement was work of repair under the leases, the cost of which was recoverable from the tenants, but that damp proofing in the lobby was an improvement, the cost of which was not recoverable.


The LVT and Lands Tribunal refused permission to appeal. S sought judicial review of the Lands Tribunal's decision to refuse permission to appeal. The judge held that judicial review was available because no appeal against the refusal of permission lay to the Court of Appeal under section 3(4) of the Lands Tribunal Act 1949, but that judicial review would only be granted in exceptional circumstances, which did not exist in this case.


Paul Letman (instructed by P Chevalier & Co) for the appellant; Jonathan Karas (instructed by the Treasury Solicitor) for the advocate to the court.


Held, section 3(4) of the Lands Tribunal Act 1949 was not an impediment to an application for judicial review, since the Lands Tribunal's refusal of permission to appeal was not itself a decision susceptible to an appeal to the appeal court under that section as being erroneous in point of law. In the light of that limit on the ambit of section 3(4), it followed that it was in principle open to a person who was refused permission by the Lands Tribunal to appeal a decision of an LVT to seek judicial review of that refusal.


Since the statutory scheme contained in the 1949 Act and the Landlord and Tenant Act 1985, and the regulations made thereunder, for appealing decisions of the LVT on service-charge issues could be said to be an adequate system for reviewing the merits of this decision, and to involve fair, adequate and proportionate protection against the risk that here the tribunal acted without jurisdiction or fell into error, judicial review of a refusal of permission to appeal would only be granted in exceptional circumstances (R v (1) Wandsworth County Court (2) Management of Guildford College of Further & Higher Education & Lord Chancellor's Department (Intervenor), ex parte Markandu Sivasubramaniam [2002] EWCA Civ 1738; [2003] 1 WLR 475 applied).


Although no High Court judge would consider the point of law sought to be raised by S if the application for judicial review was refused, the LVT and the Lands Tribunal satisfied the requirements of a 'court' for the purposes of article 6 of the European Convention on Human Rights, they were clearly both independent judicial bodies and they had the additional advantage of specialising (albeit not exclusively) in service-charge disputes. The general policy of the 1985 Act was to leave residential service charge issues to the good sense of the LVT, under the expert supervision of the Lands Tribunal.


The Lands Tribunal's refusal of S's application to appeal the determination of the LVT that some of the cost of damp proofing was irrecoverable under the service-charge provisions in the leases was not susceptible to judicial review because the circumstances of this case were not exceptional (Sivasubramaniam applied).


The point of law raised by S was a standard issue for an LVT, and was also fact sensitive. Before permission to apply for judicial review could be granted, it would have to be shown not only that the refusal of permission to appeal was wrong in law, but also that the error was sufficiently grave to justify the case being treated as exceptional. S could not even show that the Lands Tribunal's decision was obviously wrong, particularly when the issue of proportionality was taken into account. Appeal dismissed.