David Foskett QC
The Bill of Middlesex, March 2006
Let me be quite open. I was quite sceptical about the whole idea of mediation. I had not spent many years at the Bar, negotiating (usually successfully) with my opponents to be told that I needed a third party to help me. Many solicitors will have felt – and indeed may still feel – the same.
The whole business of settlement has engaged litigators since litigation began. If the process had not worked over the years, the civil justice system would have been quite unworkable. The process self-evidently did work: historically only a small proportion of cases ended up at trial.
Nowadays even fewer cases are even commenced as pieces of litigation. Of those only a small proportion get to trial. So what has happened? Are there fewer reasons to make a claim or get into a dispute? Hardly. The reduction in public funding for civil litigation, its replacement with conditional fee agreements and the higher court fees have probably had as much of an effect, if not more, than the Woolf reforms, themselves designed to make litigation the "last resort". So pre-litigation settlement must be taking place on a much wider scale than ever before.
In my practice I have had little to do with pre-litigation settlement. My solicitor colleagues will have "sorted" many cases long before they have found their way to me. Numerically at any rate, that seems to be occurring even more frequently then was the case, say, ten years or so ago. Are they doing it without the assistance of a third party or are they being helped by an outside source? Have they used a mediator at that stage? Rarely, I guess. In those cases which have not been "sorted", would mediation have helped? Who can say, but allow me to give some kind of insight into the process for those who have little experience of it.
My training as a mediator did not tell me much new, either about inter-personal skills or about myself. It did, however, teach me how to use various traditional skills as part of a "package" to help other people or institutions confront and resolve the realities of the dispute in which they found themselves. The training provided by organisations such as CEDR and the ADR Group is excellent and revealing. Again, let me be open. Fun (and exacting) though the training was, I remained to be convinced that I (or, more accurately, the process of mediation) could really make that much difference when other negotiations had failed.
However, my experience of the process over the last three or four years has made me a convert. It can work – and indeed does. Not in every case, but certainly in the overwhelming majority. Obviously, it works more readily where the parties really do want to settle and where they are prepared to be realistic and flexible. But it can work even when there is initial reluctance on the part of one or more of those engaged in the dispute.
Why does it work and why is it necessary in some cases? Experienced litigators know that client expectations sometimes need to be managed and intransigence overcome. Hearing the problems from a genuine outsider can bring a focus that no representative can bring. Hidden agendas are often in play such as a "history" between the parties' advisers or unseen family, commercial and financial influences. They need to be identified and reflected in the process. In a number of mediations I have conducted something unexpected has emerged – not anticipated from merely reading the bundle of documents and that would never have been revealed by one side to the other in ordinary negotiations.
No two mediations are the same and the good mediator will adjust his or her role accordingly, but the essential role is that of "trusted intermediary". All parties must have confidence in the mediator and in his or her ability to keep confidential the sensitive matters. The opportunity to meet "the opposition" in an informal, confidential and "without prejudice" setting, rather than at an uneasy distance in the court corridor, has a way of breaking down barriers. Mediation can operate as a surrogate "day in court" for those who need it. The mediator can keep tensions down when the first, ridiculously low, offer is made.
I do not yet fully understand why mediation works when other attempts to resolve a dispute have not. The Court of Appeal requires that it be considered, though not necessarily embarked upon, in virtually every case. That seems the right stance for the court to take. It is vital, in my view, for there to be a strong judicial civil system of justice which will readily receive and adjudicate fairly upon unresolved cases. But you cannot choose your judge; you can choose your mediator.
A noisy noise annoys - Harriers and the human rights of quiet enjoyment.
David Foskett QC
Jeremy Hyam QC
The Lawyer, May 2003
Two weeks ago, as the last few RAF Tornados on their way home from the Gulf tipped their wings and performed victory rolls over the East Anglian countryside the MOD were digesting the unwelcome news of Buckley J.'s £950,000 award for aircraft noise nuisance to the owners of Walcot Hall, a fine country house and 1,400 acre estate, built in the time of Charles II, which, for all its venerable connections, has the misfortune to lie on the training circuit for trainee Harrier jet pilots operating out of RAF Wittering in Cambridgeshire.
The case raised in stark form the question of whether and in what circumstances a sufficient public interest can amount to a defence to a claim in nuisance, and how the Court should strike a fair balance between the significant public interest in the defence of the realm and the private individual's quiet enjoyment of his land.
The Claimants were the owners of Walcot Hall, "a fine example of a Carolean mansion, attributed to John Webb and Grade 1 Listed". The Defendants operated RAF Wittering, also known as "the Home of the Harrier". Walcot Hall lies on the landing approach to Wittering, but, as considerable evidence from the MOD demonstrated, it has not been reasonably practicable to alter the layout of the runway or training circuits to take the Harriers further away from Walcot Hall without simply putting the problem on someone else's doorstep. Unfortunately for the MOD, the doorstep which they had chosen for their nuisance was, by reason of its beauty and size, of very high capital and amenity value. The blight was estimated by the Claimants at £10M.
All parties agreed that Harriers were noisy aircraft. Although there was some expert disagreement as to just how noisy that was, the judge held that it was a "very serious interference with the ordinary enjoyment of the property whether judged from inside or outside the house." It was a noise which, subject to public interest defences, "no-one should be forced to endure in any location".
The MOD raised three significant arguments against the Claimant's claim for a declaration/injunction to prevent the noise and the claim for damages. First, that the use of the land in the defence of the realm was a common and ordinary use of the land and the use of the Harriers reasonable user. Second, that because it was a case which involved the detriment to the enjoyment of land as opposed to physical damage, the court should seek to strike a fair balance between conflicting interests, and third, that having regard to the public interest in defence of the realm, (a public interest of a different and greater order from commercial and other interests hitherto considered by the common law) and that RAF Wittering was now an established feature of the local neighbourhood (an airfield had existed at Wittering since 1918, was used by Bomber Command in WWII, and Harriers, in the form of No. 1 Fighter Squadron had been present since 1969), no nuisance should be held to exist.
The Claimants by contrast likened the introduction of the Harriers in 1969 to the steam hammer envisaged in Polsue & Alfieri v. Rushmer where it was held that if a substantial addition to noise is found in a particular case it is no answer to say that "the neighbourhood is noisy and that the Defendant's machinery is of first class character".
Unlike most areas of industrial and commercial development: railways, canals, roads, large factories or airports, there are no statutory or planning controls over the development and use of weapons of defence. It was thus up to the common law through the well known line of cases Miller v. Jackson (cricket balls hit for six) Kennaway v. Thompson (water-skiing on Mallam waters) and Shelfer v. City of London Electric Lighting Company (noise and vibration from engines next to the Watermans Arms on Bankside) to develop the law of nuisance to restrict a potential tortfeasor within reasonable bounds by means of injunction and or damages. That approach is now informed by the Human Rights jurisprudence in particular that in respect of Article 8(1) and (2) and Article 1 of the First Protocol.
The Judge's approach was that if he included the public interest on the primary question of whether nuisance existed at all, there was a likelihood of injustice because if he found that no nuisance existed, then selected individuals would suffer damage for the benefit of all - without compensation. However if he left the relevance of the public interest to what discretionary remedy ought to be granted, the nuisance would continue, but compensation would be paid for (one way or another) by the public. Rejecting the application for an injunction to stop the Harriers flying at Wittering, he held that while the public interest clearly demanded that RAF Wittering should continue to train pilots, it could only do so if the Claimants were properly compensated.
This solution to the problem, and thus the flexible development of the common law of nuisance, was strongly influenced by the Human Rights jurisprudence in particular S v. France, in which the court held: "where an authority carries on an undertaking in the interest of the community as a whole it may have to pay compensation to individuals whose rights are infringed by that undertaking in order to achieve a fair balance between the interests of the individual and community".
This approach led on to the difficult issues of quantification of damage. The Claimants put forward a claim on the basis that the past 6 years losses should be assessed at the rental value to which should be added the blight or loss of capital value - a total claim of some £10M.
The judge rejected this approach and considered the separate heads of (i) loss of capital value (ii) past and future loss of amenity; and (iii) past and future loss of use.
As to capital value, although the experts had agreed that the property was blighted by the aircraft noise their respective diminution of capital valuations were £7M apart and their annual letting values were £215,000p.a. apart. This evidence had to be seen in the context that the owners had no intention either of selling or letting the property. Thus the Judge held that in the circumstances there was a relatively small risk of capital value loss eventuating and assessed such loss at £300,000. He awarded 6 years past loss of use and the immediate payment of the future loss of use and an award of £50,000 for loss of amenity. The appropriate overall award for what he regarded as an exceptional case was: £950,000.
Precisely how this figure was arrived it is something of a mystery if one simply reads the judgment. It is possible to infer that past and future loss of use accounted for £600,000, (the use of Harriers at Wittering is expected to cease in 2012) and £50,000 was the award for loss of amenity. There was no separate award for Human Rights damages, the common law damages award being just satisfaction.
Despite the Judge's protestations that the facts of the case were exceptional and that its circumstances were unlikely to recur, this decision shows how the common law of nuisance is developing in line with Human Rights jurisprudence to ensure that the public interest defence to nuisance can rarely be run without giving a right to compensation to the person affected by the activity which is carried out in the public interest. This is because in human rights terms it would be a disproportionate interference with the affected individuals rights to allow nuisance to continue without compensation. With the recent announcement of new planned runways and terminals at Heathrow, Gatwick and Stansted, the right to compensation for nuisance caused by aircraft noise is sure to be fertile ground for compensation claims based on similar human rights arguments.
The Uses and Abuses of ADR: Recent Developments as Viewed by an Advocate and Mediator
David Foskett QC
Lecture given by David Foskett QC in December 2004 to a joint event of the London Solicitors Association and London Commercial and Common Law Bar Association
1. I have been invited to speak about recent developments in the ADR world as viewed by an advocate and mediator under the general rubric of the "The Uses and Abuses of ADR".
2. Whether my contribution bears much relation to either remains to be seen, but it is essentially a personal reflection on where we are now, how we got there and what may lie ahead. I will touch on the uses and the arguable abuses of ADR in what I say.
3. Though billed as an advocate and mediator, one or two other hats that I have either worn in the past or continue to wear from time to time inform my perspective about this whole subject.
4. First, I have written on the subject of the settlement of disputes for 25 years.
5. Second, and perhaps consequent upon that, I have lectured on the subject on many occasion to organisations such as those responsible for this evening, to firms of solicitors and, for the best part of 10 years, on the JSB civil courses.
6. Third, I sit in a part-time capacity in both the High Court and County Court.
7. Fourth, I was a member of the Civil Procedure Rule Committee between 1997 and 2001 when the first tranche of the CPR was promulgated.
8. I mention all this only because I think I can claim to see the issues from about as many angles as there are. Whether that means I can see the wood from the trees must be for others to judge.
9. A little over two years ago I trained as a mediator. I would have done it before, but finding the time was not easy and shelling out £3,000 with only some prospect of recovery in mediator's fees was not a very attractive proposition.
10. I should say – and I know it reflects the attitude of many others who have done the same – that I embarked on the training with a degree of scepticism. I thought that mediation was a passing fad and that, having done without mediators until fairly recently, we could probably do without them in the future.
11. The training course was extremely good. It was hard work, good fun and extremely informative. At the end of the day, I probably learned no obvious new skills, but the course did remind me of at least some I must have picked up over the years and encouraged me to use them in a particular package to help parties resolve their disputes.
12. Having acted as a mediator with reasonable and increasing frequency over the last 18 months or so, I have become convinced that it is a valuable process and that it is here to stay. It does work, though not in every case, and it does afford a relatively stress-free environment in which to conduct negotiations. For those who feel the need for their "day in court", it offers in some respects an acceptable substitute.
13. But having said that, and despite now being a measured enthusiast for the process, the question still remains: why did we manage for so long to settle cases without mediation whereas now we are told that, in peril of an adverse costs order, we must consider using it in every case? Are cases nowadays more difficult to settle directly between the lawyers for the parties? Why is the intervention of a third party necessary?
14. There may be a number of answers to this, but one that immediately comes to mind is the problem of client expectation. Everyone is accustomed to the need to demonstrate a commitment to a client's case, but the need seems to have become more compelling in recent times. And, however hard one tries to introduce caveats in any advice given, clients will often assume that, once a particular step is taken in a dispute, there is no going back on it and that it has been taken with total confidence. When settlement negotiations take place, the client will often forget the caveats and the advisers can find it difficult to re-adjust the client's focus to a more realistic attitude. It is then that the intervention of a mediator is said by some to be helpful: "The client needs to hear it from someone else", it is often said.
15. There is little doubt that, as a mediator gains experience, he or she will take a more positive role in influencing and framing the way in which a settlement is achieved. However, the "purist" approach to mediation teaching is that the mediator is merely a facilitator and no more. Hearing it from someone else is not the watchword. However, it has been interesting to me to hear from, in particular, experienced solicitors that the intervention of a mediator is seen to be helpful in this kind of situation.
16. There are also cases where there are hidden agendas. A not wholly uncommon one is where the advisers on each side have something of a "history" between them. A mediator can keep feathers from getting ruffled where they might otherwise get ruffled. And there are family, commercial and financial influences that exist which will never surface in ordinary negotiations, but to which a mediator often becomes privy during the course of a mediation. Knowing about these matters can help the mediator fashion a settlement that might not otherwise be thought possible or likely.
17. I see the role of the mediator as essentially that of a trusted intermediary whose job it is to keep the parties talking. It goes further than that, of course, but that is its essential function. Even in the conveying of the first ludicrously inappropriate offer, the mediator has a role: it is possible to defuse the tensions thus caused and encourage a lowering of the collective blood pressure when, in some circumstances, such an offer could lead to a walk-out by the party to whom it is made. At the risk of alienating the whole of the legal profession in one sentence, a good mediator is often called on to deflect the effect of professional posturing. The difficulty is that the clients expect posturing and we all do it when acting as a party's adviser or representative. But it can get in the way of successful negotiation.
18. Although I have spoken of "client expectation" as one reason why mediation has come to the fore in recent years, it is clear that there are other significant influences. The philosophy underlying the rules set out in the CPR were plainly intended to take disputes out of the courts as much as possible and that litigation was to be the avenue of last resort.
19. As a member of the CPRC, I can say with, I believe, complete conviction that it was never the intention to draft rules that permitted the court to order mediation – or any other form of ADR. If it had been the intention, I am sure that the words would have been there for all to see. The CPR were drafted in a way that encouraged the courts to encourage the parties to use ADR wherever appropriate. Various cases have taken that further in recent years, the most recent, of course, being Halsey. That case has, perhaps, drawn back a little from the message being conveyed by some of the earlier cases, but the message is clear: mediation, or some other form of ADR, has to be considered as a matter of course at some stage during the course of any dispute or existing litigation.
20. Halsey does say that the court should not order mediation, though for Article 6 reasons rather than any other. My experience as a mediator is not as extensive as some, but I have certainly been involved in or present at mediations where, because the parties have been there only because the court has effectively ordered them to mediate, the mediation itself becomes a hollow exercise with one or other of the parties simply "going through the motions" to secure some protection on the issue of costs later. I do not know whether that constitutes "abuse" of the mediation by the party acting in that way, or whether it is an abuse of the mediation process by the court by effectively ordering it when the parties do not want it. But however it is viewed, it is a waste of time, money and emotional energy.
21. The other side of that argument, however, is that there is undoubtedly a dynamic once a mediation starts, no matter how reluctant the parties may have been at the outset, which can, and often does, lead to a settlement.
22. It is that dynamic that makes a mediation successful. The dynamic in most cases comes from the desire of the parties to resolve their dispute. The mediator's personality, skills and approach can, of course, be a significant influence, but without the will to settle, all the mediator's skills and effort will probably be to no avail. Mediators themselves have to beware of being too concerned to keep up a personal "strike rate" of success.
23. One area of concern, in my view, arises from those mediations that go on till late at night or into the early hours of the next morning. No-one wants to lose the impetus towards settlement if the impetus exists, but ill-advised decisions can be made when the mind and body are tired. In the last 12 months I have, in my advisory capacity, had to consider two settlements achieved during a mediation either very late at night or in the early hours of the morning and it was easy to see why there was so much dissatisfaction.
24. This concern is also akin to the problem of mediating too early in a dispute. By that I mean that for meaningful discussions to take place, there needs to have been a reasonable degree of mutual exchange of information and documentation. It was, I think, Lord Bingham who coined the expression "post-settlement remorse", an expression that connotes a syndrome of regret following the achievement of a settlement. Genuine symptoms of that can arise when one party feels that he or she has been badgered into a settlement or, alternatively, has agreed one when some relevant piece of information or documentation has been withheld.
25. The essential strength of the mediation process, namely, that it is informal, confidential and "without prejudice" is also potentially its weakness. The process can be abused and one party can give the other party (and the mediator) the "run around". However, the courts will have to support the actual process involved in mediation if the process is to work. In other words, the courts will have to ensure that parties do not successfully "open up" what occurred during the mediation. It has done so recently in the Reed case when ruling that "without prejudice" discussions are not admissible in determining whether it was or was not reasonable for a party to decline mediation, but it is to the mediation process proper that I address these remarks.
26. As everyone knows, the "without prejudice" rule prevents the use at trial of things said or done during "without prejudice" discussions. One exception is where a party has been guilty of "unambiguous impropriety" – for example, threatening to commit perjury or engaging in what amounts to blackmail. It is important that this exception is not used to undermine the mediation process. Doubtless mediators will be alive to the need to discourage parties from engaging in this kind of activity during the course of a mediation so that the need for the courts to consider it is kept to an absolute minimum.
27. I have said that not every case is suitable for mediation and, as I think everyone agrees, it is not a panacea. In my view, striking the right balance between encouraging parties to mediate and permitting them access to the courts is vital. I am a passionate believer in the need for a strong civil justice system. The courts still remain the venue for the resolution of a citizen's case if negotiations fail. It is important also that there is a throughput of cases to enable the higher courts to continue the well-established process of the incremental development of the common law: we cannot always wait for Parliamentary time to be found for the implementation of Law Commission reports.
28. So there needs, in my opinion, to be a true partnership between the civil justice system, reflected in the work of the civil courts, and the mediation process. I am less concerned about whether one should be seen as preferable to the other in any case. However, what I do think is important is that the courts should be as well-informed as possible about the factors likely to militate in favour of a successful mediation of a particular case as it is about those that do not so militate. If it is truly a waste of time to mediate in a particular case, then it needs to be recognised.
29. In the DCA's research programme for 2003 was a proposed review of the "relationship between alternative dispute resolution and the courts". I raised the question of the status of this review with the DCA some six months or so ago and, whilst pilot schemes are being evaluated, it seems that this specific area of research is unlikely to commence for a little while. In the process I was sent the first of an occasional series of bulletins to be published by the DCA called "Out of Court" which is designed to keep us informed about the Department's progress in promoting what is described as proportionate dispute resolution. The relevant paragraph reads as follows:
"The availability of less adversarial options has improved in recent years, especially following the changes to the court rules introduced in 1999. We are committed to further improve access to justice, especially for the socially excluded. This requires us to develop alternatives to court based methods which are quicker, cheaper, less adversarial and better at addressing behavioural changes."
30. If one overcomes the slight irritation of the split infinitive in this passage and then grapples with the idea of how ADR can help to address "behavioural changes", I doubt that anyone would argue against the objectives there set out. My only slight concern is that this paragraph then is followed by one which begins "To this end, we have agreed the following performance targets with H M Treasury", and there are then set out four objectives, three of which involve the reduction in the number of claims issued in the civil courts, to reduce the proportion of cases allocated for hearing and to reduce the number of hearings. There is an echo of this in the DCA's strategy for the next 5 years, published today, which says this:
"By 2008/09 more people will be resolving their disputes effectively themselves or through a range of advice and resolution services so that courts are focussed only on the most serious cases."
31. The objectives are, of course, legitimate, but to the extent that increased use of mediation forms part of the strategy to achieve them, it would be regrettable if the strategy proceeded without regard to whether mediation is or is not appropriate in a given case or class of case.
32. "Out of Court", which was published in March this year does, however, contain a paragraph which is reassuring:
"We are commissioning a major research project to enable us to determine the best model or models for the interaction between mediation and the courts."
33. In my view, the objective must always be that, when parties engage themselves in a dispute, they settle it in a way which minimises the risk of further litigation arising out of dissatisfaction with the settlement - otherwise the whole process becomes self-defeating. The primary objective should be a vaccination programme designed to eradicate post-settlement remorse. A detached and objective analysis of the relationship between mediation and the court process, as I believe is envisaged in the DCA's proposed research project, is important, in my view, to ensure that mediation is used properly. If it is, there will be less scope and opportunity for abuse - and the civil courts and the mediation process can live together happily ever after.
Mediation in Clinical Negligence Cases Following Halsey
David Foskett QC
The AVMA Legal & Medical Journal (Volume 11, Number1), January 2005
Dunnett v. Railtrack was decided in February 2002. It fired a warning shot across the bows of any litigant unwilling to contemplate mediation. It was not a clinical negligence or a personal injury case, but its impact resonated across the whole field of civil litigation. It was the case where Railtrack, which had successfully defended a County Court claim about her horses brought in person by Mrs Dunnett, refused to consider mediation in the context of her appeal against the loss of her claim despite being encouraged to do so by the Court of Appeal prior to the appeal. Railtrack successfully resisted the appeal, but was not awarded its costs of the appeal, as would normally have been the case, because of its attitude to mediation.
It is unlikely that the decision in Dunnett contributed to the 24% reduction in proceedings begun in the Queen's Bench Division in 2003 compared with 2002. However, the annual Judicial Statistics for 2003 issued by the DCA tells a story that will be familiar to all practitioners in the clinical negligence field. Of all the clinical negligence actions set down for trial in the Queen's Bench Division in 2003, approximately 80% were disposed of other than by a trial. A few will have been struck out or withdrawn, but the majority will have settled. A similar percentage applied to personal injury claims.
The annual Judicial Statistics do not give details of how settlement was achieved in those cases that did settle. We do not know to what extent settlement was achieved by acceptance of a Part 36 payment, by the traditional process of correspondence or other direct negotiation between of the parties' advisers, perhaps following a "round table meeting", or following a mediation?
Since Dunnett had raised specifically the profile of mediation in litigation it might have been thought that mediation had contributed to the high settlement rate in clinical negligence cases. However, the evidence does not suggest this has been so.
The main mediation-providers such as CEDR and ADR Group were, along with other interested parties, invited to intervene if they wished in the case of Halsey v. Milton Keynes General NHS Trust (and its associated case, Steel v. Joy and Halliday) , a case in which the Court of Appeal was proposing to review the whole question of mediation in litigation. CEDR put in some written submissions and referred to a roughly 25% uplift per year in numbers of cases where CEDR provided a mediator since Dunnett. That reflected broadly the experience of the other leading mediation-providers. But how much of that increased use of mediation was in the clinical negligence sphere? "Not much" is the short answer.
There is probably little dispute that mediation has not "taken off" as a means of resolving clinical negligence cases as much as many might think it should have done. This is despite Dunnett and despite the increased use of Master Ungley's direction in most, if not all, clinical negligence coming his way in a case management role over the last couple of years or so. His direction requires the parties to "consider whether the case is capable of resolution by ADR" and places upon a party considering it unsuitable the burden of justifying that view at the end of the trial. Such party is required "not less than 28 days before the commencement of the trial [to] file with the court a witness statement without prejudice save as to costs, giving reasons upon which [he relies] for saying that the case was unsuitable". The Court of Appeal said that where such a direction is given it will "bring home to [the parties] that, if they refuse even to consider [the question of whether the case is suitable for ADR], they may be at risk on costs even if they are ultimately held by the court to be the successful party."
Why has mediation in clinical negligence cases not "taken off"? There has been an understandable concern that any mediator should have a clear understanding of the kind of issues involved. There have been concerns about cost. And there have been anxieties that some will engage in the process only as a tactical exercise and not with any genuine desire to reach a settlement. These are probably the principal reasons.
Although views may differ about the true impact of the decision in Halsey, plainly it raises yet further the profile of mediation as a means of resolving a clinical negligence case in a way that practitioners on each side of the Claimant/Defendant divide will ignore at their clients' peril as to costs. As Lord Justice Dyson, the Deputy Head of Civil Justice, said:
"All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR."
He also said that whilst "mediation and other ADR processes do not offer a panacea, and can have disadvantages as well as advantages", nonetheless "most cases are not by their very nature unsuitable for ADR." His positive endorsement of Master Ungley's direction in clinical negligence cases represents positive encouragement from the Court of Appeal for parties to give careful thought to the use of mediation in such cases.
Where a successful party at trial has previously refused ADR he may be deprived of his costs, or some other adverse order may be made, if he (a) refuses to consider ADR or if, having considered it, (b) declines unreasonably to participate in ADR. However, the Court of Appeal did say the following in relation to this:
"In deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR, it must be borne in mind that such an order is an exception to the general rule that costs should follow the event. In our view, the burden is on the unsuccessful party to show why there should be a departure from the general rule. The fundamental principle is that such departure is not justified unless it is shown (the burden being on the unsuccessful party) that the successful party acted unreasonably in refusing to agree to ADR."
How does the unsuccessful party discharge this burden? The factors said by the Court of Appeal to be potentially relevant on this issue include –
"(a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success."
It was emphasised that the list was not exhaustive and that no single factor would be decisive.
In Halsey itself the Court of Appeal agreed with the view of the trial judge, who had rejected the Claimant's claim, that the defendant Trust had been entitled to reject the repeated suggestions for mediation on the Claimant's side because of the speculative nature of the claim to which it reasonably believed that it had a strong defence. Furthermore, the claim was relatively small and it was felt that the costs of the mediation would be disproportionately high compared with the value of the claim and the likely costs of the Trust at a trial. The Court of Appeal concluded that the Claimant had "come nowhere near showing that the Trust acted unreasonably in refusing to agree to a mediation", nor had it been established that "mediation had a reasonable prospect of success."
Halsey was not a case in which the court had made any order or given any direction encouraging mediation. Even if it had, on the facts it seems that this would have made no difference. The case cannot, however, be taken as a carte blanche for a refusal by either party to a clinical negligence case to consider or to embark upon mediation simply because of a firm belief in the strength of the case to be advanced. Few cases possess no litigation risk at all and sooner or later a party is going to be penalised by the court for failing to pursue mediation in such a case.
One factor said in Halsey to be potentially relevant is the rejection of reasonable settlement offers in ordinary negotiations. This "may show that one party is making efforts to settle, and that the other party has unrealistic views of the merits of the case". The more recent decision of the Court of Appeal in Reed Executive plc v Reed Business Information Ltd has reaffirmed the well-established principle that "without prejudice" negotiations cannot be referred to on the question of whether a party has unreasonably refused mediation. Negotiations conducted under the rubric of "without prejudice except as to costs" may, however, be referred to on this issue by the party putting forward the offer.
Given the ambivalence that some clinical negligence practitioners display towards mediation, there is a risk that a body of case law is about to emerge on whether it is reasonable or unreasonable to refuse to mediate. Parties will either try to manoeuvre themselves into a position in which they feel they have forced the other party to mediate, or parties will so position themselves that they can "get away" without having to mediate. That is not a very healthy or productive way of proceeding. The right approach is to regard mediation as one means of obtaining a resolution of a difficult clinical negligence case which parties ought as a matter of course to consider at an appropriate stage. As with any worthwhile negotiating process there is little point in trying to mediate until there has been a substantial exchange of information and documentation. It does not necessarily require the full interim court process to have been exhausted, but each party needs to be in a position to appreciate the strengths and weaknesses of the respective cases.
The traditional view is that mediation only needs to start when the parties have stopped being able to talk to each other. That may not always apply in this context. Normally, one would expect to have seen some efforts at negotiation before parties go to mediation. But there are those cases where it may be better for an independent third party to be the conduit for negotiations at a relatively early stage. For example, there may be particular difficulties or sensitivities on one side or the other (a claimant with an unrealistic supporter who is influencing the process, a doctor with an over-inflated view of his or her abilities) where third-party intervention can help. There may be rare cases where the parties' respective advisers have got across each other in a previous case. It is very difficult to be prescriptive, but a dispassionate response to the question "Will it help?" can usually provide the answer.
The strength of the mediation process is its informality, flexibility and confidentiality. While a mediation can be hard work for all concerned, it is considerably less stressful than a court hearing. In the clinical negligence sphere, whilst it is desirable that the mediator has experience of the kind of disputes involved, what is probably more important is that the mediator understands and is capable of responding to the sensitivities of those involved on both sides. That usually comes from good training, but is certainly helped by knowledge of "what really goes on" in this kind of litigation. The mediator is and needs to be a trusted intermediary to whom each party can talk confidently.
It would be useful if an organisation such as AVMA could keep some records over the next year or so to help determine the extent to which mediation has been used successfully in resolving clinical negligence disputes.
Environmental Damages: damages for Stigma?
David Hart QC
Journal of Environmental Law, Vol 11, No 2, p346, January 1999
Blue Circle is of interest to an environmental lawyer because of its treatment of the intertwined themes of damage and damages. It does so in the context of a statutory claim under the Nuclear Installations Act 1965, but it has considerable implications for environmental torts generally, most obviously nuisance and negligence (2) . I shall concentrate on the common law claims, as being of wider significance.
First of all, a summary of the present position as to recoverability of damages. One must remember that environmental torts have different rules as to the recoverability of damage or damages. In negligence actions affecting land, as is well known, a plaintiff has to show physical damage, rather than pure economic loss. Private nuisance, however, covers different territory. There are 3 distinct types of private nuisance, namely (i) encroachment on land, (ii) physical damage to land and (iii) interference with the quiet enjoyment of land short of such physical damage. Typical nuisances in category (iii) are noise, dirt, fumes, smells, vibrations, which, usually but not necessarily, involve something emanating from the defendant's land which affects the plaintiff's use of his land.
There are additionally cases where something happening on the defendant's land is so offensive as to amount to a nuisance, without any such emanation; the prostitutes case, Thompson-Schwab v. Costaki  1 WLR 335 is the best-known, and Bank of New Zealand v. Greenwood  1 N.Z.L.R 525, the case of one building causing glare to be thrown onto another building, is another example. As Lord Goff observed in Hunter, this sub-category of (iii) not involving something emanating from the defendant's land will be rare. It did not of course include the obstruction of the plaintiff's television picture by the defendant's building in that case.
The reason for this limitation is plain:
"Within the boundaries of his land, the owner may in principle deal with his property as he wishes".
That landowner's autonomy, as is confirmed by Blue Circle, extends to carrying on an activity which may cause severe blight to the value of neighbouring property. So, a defendant may carry on excavations which cause an established future risk of interference with a plaintiff's right to support, and hence a significant present diminution in value, but unless actual physical damage arises, the plaintiff has no claim for that diminution (3). A defendant may open a smallpox hospital which causes a plaintiff's house to go down in value; absent any actual infection, a plaintiff cannot recover damages or seek an injunction (4). A waste disposal operation may operate a landfill site causing their neighbours some diminution in value, as long as that operation does not cause a nuisance (5).
So, English law would not compensate a plaintiff complaining that his property has been blighted by the proximity of high-tension cables coupled with the public perception that electromagnetic fields caused by those cables may cause leukaemia (6). In a slightly different environmental context, arising out of the Braer oil spill, fish breeders who supplied buyers in the region of the disaster sustained losses, and made a claim under ss.1.and 20 of Merchant Shipping (Oil Pollution) Act 1971. This was dismissed by the Outer House of the Court of Session in Scotland, on the basis that because if the lack of proximity between the oil damage and the losses, the losses did not amount to "damage caused....by contamination".
Once the activity complained of is held to amount to a nuisance, whether as physical injury to land or simply by way of diminution of the utility of the land, the starting point for assessment of damages is the diminution in value of the land. That diminution may be permanent or temporary, and may be expressed in reduction in capital value or in letting value to reflect the loss of amenity caused by the nuisance. A good application of this principle is Blackburn v. ARC Ltd (7). The Blackburns complained about the smell, noise and litter which had come from the defendants' landfill site over some years. They recovered from H.H.J. Humphrey Lloyd Q.C £25,000 by way of the difference between the value of the property as it was (£175,000) and the value as it would have had (£200,000), had it been near to a landfill site, albeit one which was not creating the nuisance of which they were complaining. Their claim for general damages was dismissed in the light of the decision in Hunter.
A plaintiff may also incur the cost of repairs if reasonably incurred. This rule tends to be subordinated to the diminution in value rule, because if the costs of remediation significantly exceed the diminution in value, the courts will be loathe to award the former. This weighting assumes of course that the remediation is voluntary, so that the hypothetical reasonable plaintiff could sell the land rather than remediate it.
In addition, damages consequential upon the loss of utility are also recoverable. Those may include loss of profits, because the land cannot be used for the purposes of the plaintiff's business.
I shall address the following issues discussed in Blue Circle
(i) physical damage;
(ii) the damages recoverable by an owner whose opportunity to sell has been affected;
(iii) the damages recoverable for "residual stigma", i.e. for diminution in value attributable not to the fact that the land is contaminated, but because it was contaminated, though now fully remediated?
As noted above, the issue arose under the Nuclear Installations Act 1965. The underlying issue, however, was whether there was "damage to any property" under section 7(1)(a) of the Act. This gave rise to the same problem as occurs in the law of negligence, as to whether there was physical damage to property. The Court of Appeal in Blue Circle identified "damage" to land as the combination of physical change in the soil (the arrival of plutonium from Aldermaston) with the impact of that physical change upon the landowners' ability to use or deal with the land. They rejected the Ministry of Defence's contention that because the marshland, i.e., the soil, had not been damaged by the plutonium, and because there was no potential or actual risk to vegetation or humans, there was no damage under the Act.
Physical change alone is not however physical damage. The arrival of x molecules from D's land does not give P a claim unless P can show that those x molecules impact upon what P can do with his land (8). What sort of impact is required? Blue Circle is a good illustration. The levels of plutonium found were well above normal background levels and above the regulatory threshold. They were however well below levels posing any risk to health (9). Despite that, they were sufficiently high to affect the use and value of the land, because (i) the plutonium could not be separated from the soil and (ii) remediation had to be carried out because the levels exceeded the regulatory thresholds.
In reaching that conclusion, Carnwath J and the Court of Appeal took into account authorities about excessive dust (Hunter), the contamination of a ship's deck and hatch covers by hydrochloric acid (The Orjula ) (10), both of which were capable of amounting to damage to property, and Merlin v. British Nuclear Fuels. In Merlin, Gatehouse J decided that radionuclides in the airspace of a house did not amount to damage to property under the 1965 Act, despite giving rise to some increased risk to the health of its occupants. Merlin was distinguished by the Court of Appeal in Blue Circle on the basis that, unlike Carnwath J's finding in the latter, Gatehouse J had not held that the house and radioactive material were "so intermingled as to mean that the characteristics of the house had in any way altered". Aldous LJ added that there was no need to decide whether Merlin was correctly decided. Despite that, there must be some doubt as to whether the broader approach as to the meaning of damage identified in Blue Circle would mean that Merlin would be decided in the same way today.
In deciding whether there is physical damage, courts confronted today with these issues will therefore bear in mind the answers to a number of questions:
(i) what is the increased level of risk to health presented by that risk?
(ii) what regulatory thresholds are there and what have in fact the regulators said or done about the contamination in question?
(iii) can the contaminant be easily removed? is specialist help needed in removing it? can it be removed only by removing the soil or water in which it is intermingled?
The fact that, for instance, there is only a modest or an unproven increase in the risk to health will not be determinative in favour of a defendant, if a plaintiff can point to other real and substantial restrictions of their use of the land unless remediated.
Though the case arose under statute, ordinary principles of causation and remoteness arose, in this way. Blue Circle owned some 137 acres of land, of which only a small semicircular area of marshland with a radius of about 30m was significantly contaminated with plutonium. One argument of the MoD was that Blue Circle could only recover for any losses attributable to the marshland itself, which would have been very modest indeed, and hence the losses suffered by Blue Circle in not being able to sell the estate as a whole, of £5 million or so, were irrecoverable. This was robustly rejected by Carnwath J and the Court of Appeal. The relevant control mechanisms under the Act, as at common law, were that the damage was foreseeable and not too remote. It was foreseeable and not too remote that contamination of a small area of land might prevent Blue Circle from selling the whole estate for a period and thus lose the prospect of a sale at a price not thereafter obtainable in the open market.
Two further issues arose concerning the calculation of the losses. Blue Circle established that that there was a buyer, Sun, who would have purchased the property for the in the region of £10.5 million had the contamination not occurred. As with any award of damages dependant on proving that a third party would have acted in a certain way (11), the profits from the sale should be thus discounted by 75%. The second point arose in the context of the residual value of the property, namely the figure to be deducted from the sale price thus discounted. Blue Circle said that the residual value should be taken at the time when the property first could have been sold, namely £3.78 million, being the value at the end of 1994 when the remedial works had been carried out. The MoD argued that, because Blue Circle retained the land at trial in 1996, they should give credit for its then value, £5 million. The judge agreed with the MoD, the Court of Appeal with Blue Circle.
The Court of Appeal reached its conclusion because, as Aldous LJ put it (12), the chain of causation was broken in 1994; just as (1) Blue Circle could not have claimed further losses in respect of now uncontaminated land had the market gone down, so (2) they did not have to give extra credit because the market had gone up. I have to say that I cannot see why conclusion (2) should necessarily follow from conclusion (1). In conclusion (1), the plaintiff has chosen to retain the land, and so the claim for the extra damages consequent upon that retention should fail. In the reverse position, the plaintiff is not claiming extra damages, but still has to demonstrate his losses attributable to the contamination and thus give credit for the true, not notional, residual value. He retains an asset in fact worth £5 million, and that, in my view, should be the starting point for the assessment of his loss The fact that it was worth £3.78 million some time before seems to me neither here nor there. In my view, the correct assessment of the residual value is the actual figure at trial, at least in circumstances where the land is retained, remains essentially the same over the period of the increase and has not been developed by the plaintiff in the meanwhile (13).
The judgment of Carnwath J at first instance in Blue Circle contained the following important passage:
"BCL have no claim in respect of the diminution in value attributable simply to proximity to [Aldermaston], or to the scare-stories which have appeared in the press from time to time, or to fears of future contamination, or indeed to the market's knowledge of the present litigation.(14)"
The residual value of the property assessed by the judge was the actual value as assessed by the various valuers called to give evidence. The Court of Appeal was then faced with an argument that the judge had erred in that he had ignored the stigma element in arriving at that residual value. Aldous LJ concluded that
"...there would have been a general stigma and that general stigma contained an element which did not arise from the injury inflicted(15)".
He thus decided that the residual value of the property should be increased by 10% to exclude the fear of future contamination from the valuation exercise.
Somewhat elliptically, therefore, English courts have grappled with a difficult question, both of law and valuation evidence. Your land has been damaged, and has been remediated, as best as science can do in all the circumstances. You can say you have suffered loss, on 2 possible grounds. Firstly, your land is worth less as a result of the stigma of having been contaminated. Secondly, your land is worth less because, in the light of that past contamination, buyers and hence valuers fear that there is always the prospect of future contamination.
Old law is firmly against the latter argument succeeding: see West Leigh Colliery cited above, affirmed by Carnwath J and the Court of Appeal in Blue Circle. The former argument is more interesting, in that there is the conflict of two legal principles. The first would say that the stigma is foreseeably attributable to the physical fact of former contamination, and is thus then recoverable, just like any other economic loss consequent upon and sufficiently proximate to a nuisance. The opposing view is that this is "pure" economic loss and/or can only have some grounding in fact if there is some prospect, real or perceived, of future contamination, which is, as we have agreed, irrecoverable.
This debate has been much pursued in the courts in the United States, where there has already been a spate of private contaminated land litigation following in the wake of Superfund. As ever, there is no uniform answer from the US courts, but the trend appears to be to disallow damages on that basis. Once remediated, there still has to be some lasting physical impairment, albeit not to the extent formerly present, before the US courts are generally willing to award damages for stigma(16).
The domestic answer to this point appears to be the same. Leaving aside Blue Circle, the starting (and finishing) point is the case of Rust v. Victoria Graving Dock (17) . The plaintiff's development of houses was flooded. One of the heads of claim was that the development was stigmatised as a result of that past flooding. The Court of Appeal dismissed this claim. Aldous LJ expressed the view in Blue Circle that there was no need to consider this authority in depth. I suspect that courts in the immediate future may find that they are compelled to do so.
Though the issues in Blue Circle did not in the end lead to sustained judicial debate about the law's approach to contaminated land, the decision at first instance and in the Court of Appeal provide a modern review of the law, and a platform for its principled development. That there is some recent case law is is all the more important because of the impending implementation of the contaminated land regime in the Environment Act 1995, and the substantial crop of associated litigation which will undoubtedly follow it.
David Hart QC, 1 Crown Office Row
(1)1 Crown Office Row Temple. My thanks to a colleage, Angus McCulloch, who read an earlier draft
(2) Both Carnwath J and the Court of Appeal drew extensively on common law principles and decisions in their judgments.
(3) West Leigh Colliery v. Tunnicliffe & Hempson Ltd  A.C. 27, Midland Bank v. Bardgrove (1992) 37 Con LR 49 and Yorkshire Water v. Sun Alliance  Env. LR 204. The plaintiff may seek a quia timet injunction, or damages in lieu of such injunction, in respect of future damage, but only if the likelihood is sufficiently proved.
(4) Metropolitan Asylum District v. Hill (1881) 6 App. Cas. 193, at 206
(5) Blackburn v. ARC  Env. LR 469 (Official Referees Business)
(6) Contra, some US authority, such as Criscuola v. Power Authority of State of New York 621 N.E.2d 1195
(8) see Pill LJ in Hunter at 676E
(9) see Court of Appeal at p. 30, quoting Carnwath J at 379. The regulatory threshold, namely an additional 0.4 Bq/g total alpha radioactivity over and above the normal background level of 0.6 Bq/q, was obtained from the Radioactive Substances (Substances of Low Activity) Exemption Order 1986. The highest single reading found was 15.33Bq/g. On the most pessimistic assumption as to land use (housing with vegetable gardens) the annual dose would not exceed 50 microsieverts, compared with an annual background dose of 2,200 microsieverts.
(10)  2 Lloyds LR 395
(11) Allied Maples v. Simmons & Simmons  1 W.L.R. 1602
(12) At  Env. LR 22 at 40
(13) I thus agree entirely with the conclusion in Hussey v. Eels  2 Q.B. 227, where the profit derived from a planning permission granted well after the damage in question (diminution in value consequent upon a false pre-contractual answer about subsidence) should not be set against such diminution.
(14)  Env. LR 341, at 381 approved by the CA at  Env. 22 at 41-2. There had indeed been publicity affecting efforts to sell the property before the discovery of the migration of the plutonium: see Carnwath J at 361.
(15)  Env. LR 22 at 42-3
(16) Pro such damages, various "eminent domain" (or land compensation) cases such as Criscuola (ibid), Finkelstein v. Department of Transport (1995, Supreme Ct of Florida) 656 So.2d 921, and the tort case of Terra Products v. Kraft General Foods (1995, Indiana CA) 653 N.E.2d 89 (in principle, but not on the facts). Against, Adkins v. Thomas Solvent 487 N.W. 2d..715 (Michigan 1992), Berry v. Armstrong Rubber 989 F.2d. 822 (Mississippi 1993) Adams v. Star Enter. 851 F.Supp.770 (E.D. Va. 1994). There is a good review of cases up until October 1994 in the well-titled "Post Remediation "Stigma" Damages Hinge on Hard Evidence of Residual Risk, (1994) Inside Litigation Vol. 8 No.9. (18) One compromise between the above positions was reached in the various decisions of the US 3rd Circuit in Paoli Railroad Yard PCB Litigation 35 F.3d 717 (Pennsylvania 1994) and (unreported) 12th May 1997, in which residual stigma could be established if the plaintiffs could show (1) temporary physical damage to their property (2) that repair of that damage would not restore the full value of the property and (3) that there is some, albeit reduced, risk to health arising from the low level PCB contamination remaining on their land.
(17) (1886) 36 Ch.113
R (on the application of Khadhim Resaan Hassan v Secretary of State for Defence  EWHC 309 (Admin)
12 March 2009, February 2009
R (on the application of Khadhim Resaan Hassan v Secretary of State for Defence  EWHC 309 (Admin)
(Walker J) February 25 2009
Article 1 of the Convention on Human Rights did not confer jurisdiction on the Secretary of State for Defence to order an inquiry into the death of an Iraqi detainee who had been detained by British military personnel but had been transferred under a memorandum of understanding to the custody of United States forces at a US detention facility in Iraq.
The claimant, an Iraqui national, applied for judicial review of the decision of the defendant secretary of state that he was not entitled to an inquiry into the death of his brother under the jurisdictional provision of the European Convention on Human Rights (Article 1). The brother had been detained by United Kingdom military personnel in Iraq, during military action against Iraq by a coalition of countries including the United States and the UK. He was taken to a US detention facility, where he was guarded by US forces. A memorandum of understanding between the UK and US dictated the transfer of the claimant's brother from the custody of the UK to the custody of the US. He was released, but his dead body was subsequently found in the countryside, with both hands tied with plasitic wire and his body had several bruises and bullet wounds. The claimant maintained the US forces had been guarding his brother as an agent for the UK and applied pursuant to Article 1 for an inquiry into his death. The secretary of state submitted that the UK was only responsible under the Convention for events within its territorial jurisdiction, and that this particular claim concerned events outside the geographical scope of the Convention. The claimant submitted that the detention of his brother by British forces had fallen under the the exceptional category of extra-territorial jurisdiction for the purposes of Article 1, namely the exercise by agents of the UK of effective control and authority over an individual in a foreign territory.
Application refused; Article 1 did not apply, for various reasons.
The obligation under that Article could arise only where the contracting state had such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms under it. The cases on the "exceptional" category, R (on the application of Al-Skeini) v Secretary of State for Defence (2007) UKHL 26, (2008) 1 AC 153 and R (on the application of Al-Saadoon) v Secretary of State for Defence (2009) EWCA Civ 7, Times, February 4, 2009 were relevant here. Moreover, Al-Skeini had established that the exceptional category of extra-territorial jurisdiction only applied where an EU country had failed to fulfil its obligations under the Convention. In addition, there was no jurisdiction under Article 1 in relation to the death in Iraq of someone who was subject to the authority of the secretary of state, R (on the application of Gentle) v Prime Minister (2008) UKHL 20, (2008) 1 AC 1356 applied.
In any event, the UK had relinquished responsibility for maintaining and safeguarding the claimant's brother under the memorandum of understanding, and it had no substantial control over his living conditions. It was clear that the detention facility was not a UK military establishment, but remained a US establishment, and the presence or absence of UK personnel did not affect that. In addition, it could not be argued that the detention facility had similar characteristics to that of a British embassy as the case law required.
COMMENT (March 2009)
Although the onset of UK military action in Iraq is relatively recent there have already been a number of occasions when the UK has had to consider whether the ECHR applies in relation to these circumstances. The House of Lords considered the question in Al-Skeini and Gentle; and question recently came before the Court of Appeal in the Al-Saadoon case. In Al-Skeini the House of Lords considered the leading Strasbourg case on jurisdiction under Article 1, Bankovic v Belgium and others (2001) 11 BHRC 435, and noted that the Court in that case concluded that "jurisdiction" under article 1 is primarily territorial, other bases for jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. In Al-Skeini itself the HL held that the UK did not have effective control over the territory of Southern Iraq (and therefore did not have 'territorial jurisdiction') such that an individual within that territory did not fall within the jurisdiction of the United Kingdom. In this case, the claimant sought to distinguish his brothers' case from that of the claimants in Al-Skeini by arguing that the arrest and detention of an individual by one Contracting State outside its territory constituted the exercise of jurisdiction by that Contracting State over that individual even though there hand not been an extension of jurisdiction over a particular territory or part of it.
It was not surprising that the Administrative Court rejected this argument; the precedents were flat against it. Jurisdiction in non-contracting states only arises under Article 1 in exceptional circumstances; this cuts both ways. In other words, once the "authority and control" test has been satisfied, and Article 1 is triggered, the Contracting State in question cannot take a limited selection of rights. It must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it can realistically secure to everyone in the territory all the rights and freedoms in section 1 of the Convention. That prospect simply does not obtain in Iraq; indeed any attempt to enforce Convention rights would conflict with local customs, particularly where Sharia law is in force, and therefore Convention rights would clearly be incompatible with the laws of the territory occupied.
This case underlines, and it needs underlining, the Strasbourg court's emphasis in Bankovic that the vocation of the Convention is "essentially regional" and that the Convention operates "in an essentially regional context and notably in the legal space (espace juridique) of the contracting states
Delay as JR Ground
David Foskett QC
Andrea Lindsay Strugo
Judicial Review, JR 253, September 2005
This article explores the various ways in which complaints of delay have been deployed to challenge administrative and judicial decisions.
1. This article explores the various ways in which complaints of delay have been deployed to challenge administrative and judicial decisions. It first examines the express protection afforded under Articles 5(4) and 6(1) of the Convention against delay. It then considers challenges to administrative decisions outside the scope of these Articles, most of which have been subsumed under traditional grounds of review.
ARTICLE 5 ECHR
2. Article 5(4) ECHR provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release order if his detention is not lawful"
What constitutes a speedy determination?
3. The meaning of a speedy determination has been considered mostly in the context of decisions made by the Mental Health Review Tribunal (the "MHRT") or the Parole Board. This article focuses upon these two areas.
Article 6(1) vs Article 5(4)
4. In R(KB) v (i) MHRT (ii) Secretary of State for Health  EWHC 639, the court was asked to determine whether the applicants, who had been detained under s.3 of the Mental Health Act 1983 (the "MHA") had been deprived of their right to a speedy determination. Stanley Burnton J emphasised that the issues before the MHRT were "probably the most important issues decided by any tribunals" since they concerned the liberty of the individual and were therefore "as intrinsically important as many of those of the Crown Court". The importance of the MHRT's decision was, he said, reflected in the different wording of Articles 5(4) and 6(1) ("decided speedily" vs. "reasonable time"). A similar point was made in R (Noorkoiv) v Secretary of State for the Home Department  EWCA Civ 770,  1 WLR 3284, in which the Court of Appeal considered the legality of the Parole Board's decision to fix the Claimant's review at the end of the quarter following the expiry of his tariff period. The Court stated that no direct assistance could be gained from Article 6(1) cases since:
"The fact that the state is dealing with people who are at least presumptively detained unlawfully, and the legality of whose detention is controlled by article 5(4), imposes a more intense obligation than that entailed by the need for a prompt trial of people who are not in custody."
The meaning of "speedy" is dependent upon individual circumstances of the case
5. In Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, the ECtHR said that the "speedily" requirement "cannot be defined in the abstract; the matter must – as with the "reasonable time" stipulation in Article 5(3) and Article 6(1) - be determined in the light of the circumstances of each case".
6. The meaning of this requirement was first discussed by the Court of Appeal in R (C) v S & W London Mental Health Tribunal  EWCA Civ 1110,  1 WLR 176. This concerned a patient who had been detained under s.3 of the MHA. He applied immediately for discharge and, in accordance with standard practice, his case was automatically listed for a hearing eight weeks later. He complained that this period of time contravened Article 5(4).
7. Lord Philips MR, who gave the only judgment, approved Scott Baker J's observation at first instance that "what is required is speed and justice": it was necessary to get all the relevant material before the tribunal as quickly as possible. For patients detained under s.3, the exercise to be carried out by the tribunal was not an easy one, and its decision would be determinative of the patient's fate for the next six months. It was therefore paramount that "such time can properly be allowed as is reasonably necessary to ensure that the tribunal is in a position, adequately and fairly, to adjudicate on the issues before it."
8. Lord Phillips MR also emphasised that the assessment of what constituted a speedy determination should be fact dependent, and that whilst there was nothing inherently inconsistent with Article 5(4) in having a target date of eight weeks maximum, the circumstances of some cases could require less than this. Thus it was not lawful to have a practice which made no effort to see that the individual application was heard as soon as practicable, having regard to the relevant circumstances of the case.
9. Similarly, in Noorkoiv, the Claimant's hearing before the Parole Board was listed to be heard approximately two months after the expiry of his tariff period. Buxton LJ recognised that the system being operated in that case appeared much better thought out than that condemned in R(C); nevertheless, it was unacceptable because it treated every case alike, "and imposed delays for reasons that are unrelated to the nature or difficulty of the particular case".
10. The emphasis on the fact-sensitive nature of any finding of delay has raised the question whether the Strasbourg jurisprudence has confused the position by prescribing maximum time limits between parole board reviews. In Murray v The Parole Board & The Secretary of State for the Home Department  EWCA 1561 and Day v SSHD  EWHC 1742, the Court considered whether there was a presumption that one year generally represented the outer limit of a speedy review. Both Courts concluded that there were no such time limits, that facts would always be critical, "but that it is of value to national authorities as well as to prisoners and advisers to know that this is how the question is approached in Strasbourg". It will plainly be easier to establish that a decision setting an interval of one year falls foul of Article 5(4) than a decision setting a period less than that.
11. The factors to be taken into account when determining the appropriate period of review are manifold; but a lack of resources cannot generally be relied upon to justify delay. It is also inappropriate to assert the need to assess a prisoner in certain conditions, or to have regard to the merits of the prisoner's case when setting a time for review. Relevant factors include the date of the Claimant's last review, the measures that have been implemented in anticipation of the next review, and the complexity of the decision that needs to be made.
Lack of resources no excuse
12. Unsurprisingly, the most commonly raised defence in such cases is that the MHRT/Parole Board lacked the resources to conduct the hearing at an earlier date: see, for example, R(KB) v (i) MHRT (ii) Secretary of State for Health  EWHC 639, Noorkoiv and Murray. This is also an issue which has arisen in the context of Article 6(1) and administrative decisions.
13. KB was a test case of 7 psychiatric patients who were detained under s.3 MHA. They complained about the delays between the making of their applications for the review of their detention and the dates of the effective hearings, contending that their cases were representative of systemic inadequacies in the system. Delay was caused by cancelled hearings; none of the cases was even heard within the eight-week period scrutinised in C's case. Similarly, in Noorkoiv and Murray, the Home Secretary submitted that the present system could not be operated differently due to, among other things, the limited numbers of judges and psychiatrists available, and the general lack of resources.
14. Both Stanley Burnton J and the Court of Appeal in Noorkoiv were adamant that the State could not escape judicial scrutiny by arguing that issues relating to the allocation of resources were non-justiciable. According to Stanley Burnton J:
"A decision as to what resources are to be made available often involves questions of policy, and certainly involves questions of discretion. These are matters for policy makers rather than judges??..However,?. when issues are raised under Articles 5 and 6 as to the guarantee of a speedy hearing or of a hearing within a reasonable time, the Court may be required to assess the adequacy of resources, as well as the effectiveness of administration?."
15. Similarly, in Noorkoiv, their Lordships emphasised that there was no general principle that "administrative necessity" excuses delay. Rather, it was clear from the Strasbourg case-law that the state must organise its legal system to enable it to comply with Convention requirements.
16. However, both decisions recognise that even the most efficient systems will encounter occasional difficulties. Stanley Burnton J acknowledged that there will sometimes be more urgent cases which must be heard immediately. However, the administrative problems identified in these specific cases were not examples of excusable delay; they were not part of "the practical realities of litigious life". In KB, the cancellations were regular occurrences caused by a long-standing shortage of psychiatrists and, at times, inadequate pay. The system was unable to accommodate urgent cases without totally disrupting all hearings. Although steps had been taken to address these problems, "the State has not established that the shortage of tribunal members has occurred notwithstanding its implementing adequate practical measures to minimise that shortage." Similarly, in Noorkoiv, the problems with resources could not be regarded as novel or unforeseeable. As Simon Brown LJ stated, "further resources must be found"
17. In KB, Stanley Burnton J acknowledged that in general terms a court is ill-equipped to look at the adequacy of resources. The proper approach in cases of this kind was, first, to consider whether the delays in question were, on the face of it, inconsistent with the requirement of a speedy hearing. If so, the onus would be on the State to excuse the delay by establishing, for example, that the delay had been caused by a sudden and unpredictable increase in the workload of the tribunal, and that it had taken effective and sufficient measures to remedy the problem. In that case, Stanley Burnton J was willing to carry out a detailed analysis of the problems plaguing the tribunal system, an exercise which was very unusual in judicial review at that time.
18. There is, therefore, a particularly high threshold to cross to justify delays in the context of mental health and parole board hearings: whilst unforeseen circumstances may amount to a valid justification, lack of resources by itself will not.
What is the appropriate remedy?
19. Article 5(5) ECHR provides:
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
20. In the very recent case of R (Greenfield) v Secretary of State for the Home Department  UKHL 14,  1 WLR, the House of Lords considered the appropriate approach to damages under section 8 of the Human Rights Act 1998. This was a case in which a breach of Article 6(1) had been found. Lord Bingham set down a number of principles to be applied when awarding damages in respect of Article 6 breaches. His Lordship recognised that there was an "obvious contrast" between Article 5 and Article 6 in that the former included an enforceable right to compensation and therefore "there is a risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another". However, some of the principles were general in nature and thus should be relevant to awards under Article 5(5), particularly when the breach of Article 5 is procedural in nature. Lord Bingham held:
(a) "The 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by Member States, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official."
(b) "The purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg. But to give them the same remedies without the delay and expense of resort to Strasbourg?."
(c) "Section 8(4) requires a domestic court to take into account the principles applied by the European Court under article 41 not only in determining whether to award damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents?.They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all."
(d) Sometimes, the finding of a violation may not amount to just satisfaction, but only where the court finds a causal connection between the violation found and the loss for which an applicant claims to be compensated. This loss may be pecuniary or non-pecuniary.
(e) Where the Claimant seeks damages for loss of an opportunity in Article 6(1) cases, the court will not speculate on what the outcome of the proceedings would have been but for the violation, but it is willing in appropriate cases to make an award if of the opinion that the applicant has been deprived of "a real chance of a better outcome".
(f) Where the Claimant seeks general damages for physical or mental suffering, the Claimant must show that such damages is attributable to the Article 6 violation. However, the court has been very sparing in making such awards.
21. In R(KB) v South London and South and West Region MHRT  EWHC 193,  3 WLR, which pre-dated Greenfield, Stanley Burnton J enunciated a number of principles to be followed when awarding damages under Article 5(5) when a breach of Article 5(4) had been found. However, in Greenfield, Lord Bingham held that although KB did not concern Article 6, there were broad reasons why some of the principles set out by Stanley Burnton J should not be followed. Nevertheless, the following principles appear to survive and they have particular application to Article 5 cases:
(a) The wording of Article 5(5) did not compel the award of damages in every case. The European Court has declined to award damages in certain Article 5 cases, and it would be anomalous if the national court were required by the Convention in cases where the European Court has not.
(b) There was no "clear and constant jurisprudence" of the Strasbourg Court on the recoverability of damages for distress under Article 5(5) in the absence of a deprivation of liberty. Two principles could be discerned: (i) that damages were not recoverable in the absence of a deprivation of liberty; (ii) that damages were recoverable for distress which may be inferred from the facts of the case.
(c) The relevant period to which any award of damages relates was that between the time when the tribunal should have determined a patient's application and the date when it is actually determined.
(d) Whilst there were no special legal considerations applicable to mental health cases, there were special factual considerations, the principal one being the generally vulnerable condition and circumstances of mental patients. Whilst the law usually applied an overtly restrictive approach to claims for distress and frustration, it was important to take account of the claimants' vulnerable mental condition.
(e) Notwithstanding this, in order to justify an award of damages, the frustration and distress must be significant and "of such intensity that it would in itself justify an award of compensation for non-pecuniary damage". In mental health cases, an important touch-stone of that intensity is whether the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes.
22. Stanley Burnton J also held that exemplary damages should not be awarded since the object of an award under Article 5(5) was purely to provide compensation for injury.
23. Notably, when Lord Bingham determined the appropriate remedy in H v Secretary of State for the Home Department  2 AC 253, he did not consider that compensation was necessary since:
"(a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which article 5 is intended to avoid."
24. The inherent value of a declaration, and the requirement of real prejudice, is also reflected in the parole board cases. In Noorkoiv, Buxton LJ stated that it was not for the Court of Appeal to give detailed directions to the Secretary of State / Parole Board as to how they should arrange their affairs. However, "they will no doubt wish to take account of the observations made by this court". No formal relief was granted but only a declaration that the consideration of the Claimant's parole application had not complied with Article 5(4). According to Lord Woolf CJ:
"if this practice had prejudiced Mr Noorkoiv then he would be entitled to an appropriate remedy, but in this case he has suffered no prejudice since we know the Board would not have directed his release."
Nonetheless, the appeal had clarified the law under article 5(4). He warned that if the Parole board did not change its practice, prisoners would be entitled to obtain a mandatory order.
ARTICLE 6(1) ECHR
25. Like Article 5(4), Article 6(1) specifically protects against delay. However, the threshold for its infringement is lower as it ensures a fair trial "within a reasonable time" rather than "speedily".
26. The right to a fair trial within a reasonable time under Article 6(1) has a higher normative force than under the common law:
"The protection afforded by Article 6(1) may be regarded as demanding a standard of performance by the prosecutor which is more exacting than that set by the common law, as it does not require the person charged to demonstrate prejudice."
27. Indeed, in contrast to the common law ground of abuse of process, where prejudice caused by trial or judicial delay was necessary, under the Human Rights Act 1998, the courts must ignore the prejudice requirement and address potential infringements of Article 6(1) resulting from delays in the judicial process directly.
Has there been unreasonable delay?
28. Strasbourg jurisprudence shows that the underlying purpose of the reasonable time requirement in the criminal context is to avoid the defendant remaining too long in a state of uncertainty, especially when he may be in custody as well as to avoid delays which might jeopardise the effectiveness and credibility of the administration of justice. Therefore, in determining whether or not there has been delay in breach of Article 6(1), as with the Article 5(4) cases, the European Court considers that prejudice is irrelevant in that a violation of the reasonable time requirement can occur in the absence of prejudice.
29. The Court in Konig v Federal Republic of Germany (1978) 2 EHRR 170 provided the following guidance:
"The reasonableness of the duration of proceedings covered by Article 6(1) of the convention must be assessed in each case according to its circumstances. When inquiring into the reasonableness of the duration of criminal proceedings, the court has had regard, inter alia, to the complexity of the case, to the applicant's conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities."
The criminal context
30. In Procurator Fiscal v Watson and Burrows  UKPC D1  1 AC 379, the House of Lords relied upon Strasbourg jurisprudence when considering whether delays between the defendants being charged and their trials violated their right to a fair trial within a reasonable time. Lord Bingham held that the first step was to consider the period of time that had elapsed, and only if it gave "grounds for real concern" would it be necessary for the court to look into the detailed facts and circumstances surrounding the particular case. Both Lord Hope and Lord Bingham explained that proving a breach of the reasonable time requirement is difficult. As Lord Bingham indicated, the Convention is "directed not to departures from the ideal but to infringements of basic human rights".
31. Their Lordships also considered several judgments of the Privy Council which required the defendant to demonstrate prejudice to establish unreasonable delay. Lord Bingham viewed Darmalingum v The State  1 WLR 2303 as the exception because there "delay was seen as affording an independent ground of relief, whether or not there was prejudice or any threat to the fairness of the trial, if the delay was of such length as to be inordinate and oppressive". Lord Bingham questioned the reasoning in the other Privy Council decisions on the delay issue and said that Darmalingum more closely reflected Strasbourg jurisprudence.
The civil context
32. In civil proceedings, administration of justice considerations also apply:
"The state should not subject claimants to prolonged delay in pursuing their claims, whatever the outcome, nor defendants to prolonged uncertainty and anxiety in learning whether their opponents' claims will be established."
33. The approach to the reasonable time requirement in civil proceedings is exactly the same as in criminal cases. The House of Lords in Porter v Magill  UKHL 67  2 AC 357 emphasised that the right to a determination of a person's civil rights within a reasonable time was, on a proper interpretation of Article 6(1), an independent right that was not simply part of an overriding right to a fair trial. It therefore did not require the complainant to show himself prejudiced by the delay.
34. Their Lordships rejected the approach adopted in cases such as Flowers v The Queen  1 WLR 2396, where prejudice was held to be one of the factors to be taken into account, and followed Lord Steyn's observation in Darmalingum instead. Lord Hope held that the "only question was whether, having regard to all the circumstances of the case, the time taken to determine the person's rights and obligations was unreasonable".
Lack of resources is no excuse
35. It is clear that, as with the Article 5(4) cases, a lack of resources and chronic under-funding of the legal system generally cannot be an excuse where there are unacceptable delays. As Lord Bingham explained in Procurator Fiscal, it is generally incumbent on contracting states to organise their legal systems as to ensure that the reasonable time requirement is honoured. Yet, "there is nothing in the convention jurisprudence [that] requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised system". Therefore there may be some exceptional circumstances that could justify an excessive lapse of time.
What is the appropriate remedy?
36. As emphasised in Greenfield, in the great majority of cases in which a violation of Article 6(1) has been found, the finding of the violation in itself has been treated as just satisfaction. The grant of a stay or an award of damages has been much more difficult to obtain.
Stays remain exceptional in criminal cases
37. Although the reasonable time requirement in Article 6(1) demands a more exacting standard of performance than the common law, the grant of a stay remains exceptional.
38. In AG's Ref No.2 of 2001  UKHL 68  2 AC 72, the Lords considered whether criminal proceedings should be stayed for a failure to comply with the reasonable time requirement in Article 6(1) where the accused could not demonstrate any consequential prejudice.
39. While Lord Bingham recognised "a powerful argument" that if a public authority causes or permits such a delay sufficient to breach Article 6(1), further prosecution would be unlawful so that there should be an automatic stay, he stated that there were four reasons which, "cumulatively compel" the rejection of that argument.
(i) It would "be anomalous if breach of the reasonable time requirement had an effect more far-reaching than breach of the defendant's other art 6(1) rights when (as must be assumed) the breach does not taint the basic fairness of the hearing at all, and even more anomalous that the right to a hearing should be vindicated by ordering that there be no trial at all."
(ii) A "rule of automatic termination of proceedings in breach of the reasonable time requirement cannot sensibly be applied in civil proceedings? [it] would defeat the claimant's right to a hearing altogether and seeking to make good his loss in compensation from the state could well prove a very unsatisfactory alternative."
(iii) A rule of automatic termination "has been shown to have the effect in practice of emasculating the right which the guarantee is designed to protect." If judges were required to stay proceedings automatically once upon proof of breach of the reasonable time requirement then the judicial response would be to set the threshold unreasonably high.
(iv) Strasbourg jurisprudence "gives no support to the contention that there should be no hearing of a criminal charge once a reasonable time has passed." In Eckle v Germany (1982) 5 EHRR 1 the European Court held that at the remedy stage, the "sole matter to be taken into consideration is ? the prejudice possibly entailed" by the fact of the delay..
40. Therefore, although prejudice is not relevant when determining whether delay has occurred in breach of Article 6(1), it assumes paramount importance at the remedy stage when there is a balancing exercise to be carried out between the competing purposes of Article 6(1): the public interest in the final determination of criminal charges, on the one hand, and the right of the applicant to a fair trial within a reasonable time on the other.
41. Consequently, although there could be cases where the delay is such that it would be unfair to try the defendant, such cases would be exceptional. A stay would never be an appropriate remedy if any lesser remedy, such as a declaration, a reduction in sentence or an award of damages, would adequately vindicate the defendant's Convention right.
42. Lord Bingham's speech in Greenfield is particularly illuminating on the question of damages:
"It is enough to say that the [Strasbourg] Court has looked for causal connection and has on the whole been slow to award such compensation"
It is also noteworthy that where the Strasbourg Court has made an award of compensation, the sums awarded have been modest.
43. The appropriate remedy will also depend on the stage at which the breach is established. In criminal cases, a stay may be necessary if it is determined before the hearing takes place that the delay would result in an unfair hearing. If, however, it is established retrospectively that a trial was unfair, any resulting conviction will be quashed.
Remedies in the civil context
44. In Goose v Sandford & Co (1998) Times, February 19, the court was "driven" to take the "exceptional course" of ordering a retrial. The first-instance judge took twenty months to give judgment after a five-week trial and the loser sought a retrial on the basis that the delay meant that the judgment was unreliable. The Court of Appeal held that the findings were unsafe and such delays deny justice to the winning party during the period of delay, undermine the loser's confidence in the correctness of the decision and weaken public confidence in the judicial process. The only way to rectify the miscarriage of justice was therefore to order a retrial.
45. Unfortunately, the House of Lords have not had to consider remedies in the civil context in great detail. However, in Porter v Magill, Lord Hope did refer to Schiemann LJ's opinion in the Court of Appeal that it would not have been appropriate to quash the auditor's certificate. Schiemann LJ considered that it was only where the delay cast doubt on the reliability of the conclusions reached by the tribunal should the court treat the delay as a ground for quashing the tribunal's judgment. where the delay results in other harm (financial, physical or psychological) then an award of damages may be more appropriate. If the danger of an unreliable verdict as a result of delay is brought to the court's attention after the hearing, then quashing may be necessary. If the delay is brought to the attention of the court before the hearing, then an order for a speedy trial may be appropriate.
CHALLENGES TO DELAY ON GROUNDS OTHER THAN ARTICLE 5(4) AND ARTICLE 6(1)
46. Unless Article 5(4) or 6(1) is engaged, it is difficult to raise delay as a ground of review. The right to a decision carried out speedily, or even within a reasonable time, lacks the higher normative force afforded under Article 5(4) or 6(1).
47. Delay is not one of the traditional grounds of review recognised in CCSU v Minister for the Civil Service  AC 374. However, it has infiltrated judicial review disguised as breach of statutory duty, procedural unfairness, or unreasonableness. Within these confines, its evolution has been somewhat limited. It is difficult to distil a unifying set of principles from the case-law, given the different ways in which delay has been articulated, and the wide variety of administrative decisions challenged. However, more recently, it has arisen in certain areas as a self-standing ground of review, without recourse to traditional public law labels.
Breach of statutory duty
48. Where there is an express statutory time limit and a failure by a public authority to comply with it, the authority's decision or (in)action can be challenged for breach of statutory duty on the ground of delay.
49. For example, in R (Dawkins) v Bolsover District Council & The Standards Board for England  EWHC 2998 (Admin), the applicant was a councillor who was suspended from his position on the local district council following various allegations. The statutory framework governing the standards committee's powers to suspend stated that the committee "shall ensure that ? the hearing is held within the period of three months beginning on the date on which the monitoring officer first received a report?". However, the committee did not hear the case within the three-month period and the applicant sought judicial review of the decision. He stated that the time stipulation was mandatory not discretionary.
50. Hughes J held that the committee's decision was unlawful, but not because the time stipulation was mandatory. The time stipulation was a procedural requirement and whether such a procedural irregularity rendered the committee's decision a nullity could not helpfully be answered by attaching to the statutory provision the label either "mandatory" or "directory" because nearly all procedural requirements are expressed in terms of "shall ensure". The correct approach was the substantial compliance approach set out by Lord Woolf MR in R v Secretary of State for the Home Department, Ex parte Jeyeanthan  1 WLR 354 which required the court to ask three questions:
"1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? ?
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? ?
3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance?
51. Therefore, the effects of non-compliance with statutory time limits, even where clearly set out, depend very much upon the intent of the particular statute as a whole and what the consequence of the non-compliance was on the facts of the case. The court's task is thus to look at the purpose of the statutory scheme and to seek to do what is just in all the circumstances; to balance competing interests or statutory purposes.
52. In Dawkins, Hughes J identified the principal purpose of the statutory scheme as the preservation and enforcement of high standards in public life. An ancillary purpose was the avoidance of unresolved accusations against a local politician for any longer than is necessary. There was also a general public interest that accusations should be resolved, one way or the other, expeditiously. Hughes J emphasised that it would be a "wholly disproportionate" consequence if a brief delay which might be the result of unforeseen and unexpected circumstances and which would cause "no significant injury to the member complained about, nor any significant public disadvantage" should become a nullity because the three-month time limit had passed. All that was necessary was substantial compliance, including "a determined effort" to meet the deadline. However, in this case there was not substantial compliance; it was assumed that missing the deadline did not matter. Further, where there were relatively minor accusations, there was a "risk of the effect of the delay ? being disproportionate to the conduct at issue". Hughes J concluded that the committee's decision was unlawful in respect of the minor accusations and quashed it.
Delay where there is no express statutory time limit: Some observations
The court will usually imply a reasonable time limit
53. If there is no express time limit set out in the statutory framework, the court will generally imply an obligation as to reasonable time. For example, in R(Saadi) v Secretary of State for the Home Department  UKHL 41  1 WLR 3131, which concerned the statutory power of the Home Secretary to detain asylum seekers pending examination of their case and a decision. The Claimants objected that such detention was unlawful. The House of Lords held that the period of detention required in order to arrive at a decision must be reasonable in all the circumstances. The Home Secretary was not entitled to detain without any limits so long as no decision had been arrived at; rather, it was important "to act reasonably in fixing a time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making". The power to detain must be exercised reasonably, "at any rate in the absence of specific provision laying down particular timescales for administrative acts to be performed".
54. So, for example, in Lafarge Redland Aggregates Limited v The Scottish Ministers (2001) Env LR 27, a "scandalous" delay in waiting for a determination of the Claimant's planning permission resulted in ministers clearly breaching their statutory duty to decide the application within a reasonable time.
Reasonableness depends on all of the circumstances
55. This will involve having proper regard to the purpose of any relevant legislation, the prejudicial impact of delay on the applicant and the resources available to the decision-maker. These factors are explored in various contexts below.
56. In R v Government of Durham Prison, ex parte Hardial Singh  1 WLR 704, Woolf J said in relation to the power of deportation:
"As the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case."
The court is unwilling to criticise resources or prescribe a generic time-table
57. In Salih v Secretary of State for the Home Department  EWHC 2273 (unrep.), two asylum seekers complained of substantial delays between their applications for hard cases support and the provision of such support. The Home Secretary submitted that the delays were excusable because they resulted from the administration of the scheme by the manpower resources available to it. Stanley Burnton J did not accept this. He considered that the defendant had totally failed to provide any good explanation for the delay, resource-based or not. However, whilst he made a declaration condemning the delay in that case, he took a rather different approach to that adopted in KB by simultaneously warning that "the court cannot?specify what resources must be devoted to administering the scheme, or what delay in general is lawful and what delay is not". This is a startling contrast to Brown LJ's comment in Noorkoiv that "resources must be found".
58. Typically, the court is unwilling to prescribe time limits. In R v Secretary of State for the Home Department, ex parte Roberts (7 July 1998 unrep), despite the court finding an inordinate delay between parole board reviews, it was appropriate to grant a declaration imposing time limits for reviews. However, this is not to say that the court will refuse to grant declarations which prescribe a specific time-table in relation to the particular case it is considering. For example, in R v Brent London Borough Council, ex parte Miyanger 29 HLR 628 (7 July 1998), Harrison J considered that "firm action is required to ensure that the applicant's application is now determined with expedition", and made an order for mandamus to compel determination within 28 days.
Cases with no room for delay or deferral
59. Sometimes, the courts have held that the relevant statutory framework does not permit deferral or delay once certain statutory conditions are met. For example, in R v Sefton Metropolitan Borough Council, ex parte Help The Aged  4 All ER 532 (CA), once the local authority had assessed B and determined that she was a person in need of care and attention within s.21 of the National Assistance Act 1948, it could not then defer commencing its funding of her accommodation under a non-statutory prioritisation scheme simply because of a lack of resources or competing needs. Lord Woolf MR explained that once the local authority was satisfied that B was in need of care and attention, "they were under an obligation to fulfil their duty and a lack of resources was no excuse". Lord Woolf allowed the appeal not because of any Wednesbury approach "but because any appropriate application of the language of the statutory provisions to the facts of this case does not allow any other result".
60. However, the courts do not translate the lack of room to delay into a need to act immediately or automatically. In R v Patent Office, Ex Parte Chocoladefabriken Lindt (5th December 1996 unrep) Laddie J held that the Registrar's duty was to take steps "timeously" to put the trade mark on the register and to act with due expedition.
Cases where there is a power to defer but a duty to review
61. At other times, the courts have held that the statutory framework does not preclude the public authority from deferring or delaying its decision, but that in such cases, the public authority is under a duty to review its decision to defer.
62. Engineers & Managers Association v Advisory Conciliation Service  1 WLR 302 is one example of this. Following an adverse award by the TUC, the EMA referred a recognition dispute between it and two other trade unions to ACAS under the Employment Protection Act 1975. ACAS resolved to proceed with the inquiry but, after the EMA launched legal proceedings against the TUC, decided not to proceed for the time being and maintained its refusal for two years. The EMA sought a declaration that ACAS was in breach of its statutory duty since s.12 of the Act provided, without prescribing a time limit, that ACAS "shall prepare a written report".
63. Their Lordships considered that ACAS had a power to defer a decision, but the nature of that power depended upon its statutory functions, its duties and its responsibilities. The effect of the governing statute was that ACAS had a discretion to suspend inquiry if it were of the opinion that a period of deferment would promote the improvement of industrial relations. The power to defer "was a general power to be exercised reasonably and consistently with the general duty imposed upon ACAS".
64. However, their Lordships held that ACAS could not under the guise of deferment refuse to complete its inquiries. Lord Edmund-Davies distinguished the position of a clear decision not to proceed with the investigation until the litigation was finally disposed of with one in which the body kept the matter open and under periodic review. The former would result in the "virtual abandonment of [the] statutory duty". The majority found that ACAS had not taken a final stand.
The courts will usually review using traditional grounds of review
65. Once an authority exercises its power to defer or delay, the courts will generally only review the exercise of that power on traditional CCSU grounds.
66. For example, in EMA v ACAS, once their Lordships determined that ACAS had the power under the Act to defer, they then considered the proper exercise of ACAS's discretionary powers: namely, whether in reviewing the position and yet deciding to continue to postpone, it had acted unlawfully. Lord Scarman observed:
"the exercise of its discretion is not reviewable by the courts unless ACAS can be shown either to have misdirected itself in law; or to have failed to observe the requirements of natural justice, or to have failed to consider relevant matters; or to have conducted the reference in a way in which no reasonably advisory conciliation or arbitration service, paying due regard to the statue, could have conducted it."
67. This decision was considered in R v Dental Practice Board, ex parte (i) Zietsman (ii) Schmulian (2001) Lloyd's Rep Med 124, where the court considered the Board's suspension of its investigation into potentially fraudulent claims for payment, pending the outcome of a police investigation. After considering the statutory framework and analogous provisions, the Court concluded that where deferral of a claim for payment which it is practicable to determine has the de facto effect of suspending the dentist from practice, the Board was not authorised to defer the claim altogether.
68. The court rejected the Board's assertion that it was not practicable to investigate claims being determined by the police, this decision being reviewable by the court only on normal public law grounds. It concluded, "in view of the devastating effect of its decision on the Applicants, the Board should have addressed the issue of practicability more directly than it did and in a more individuated manner" and it should have reviewed the matter from time to time. It also found for very similar reasons that the block decision to suspend all claims pending the outcome of the police investigation was flawed on Wednesbury grounds.
More recently, the courts have considered delay as a free-standing ground of review
69. More recently, complaints of delay in exercising a discretionary power have been raised without reference to traditional public law grounds. The following welfare and housing cases are instructive illustrations.
70. In Salih, the Claimants complained that NASS had exposed them to unnecessary and unlawful delay. Stanley Burnton J did not accept that the delays were caused by inescapable problems with resources: it was unclear why so many days were required to arrange the accommodation and travel arrangements. Furthermore, it was essential to scrutinise any delays "against the background that the applicants for support are ex hypothesi destitute and have nowhere else to turn, and against the undoubted fact that when required by the court to do so, NASS can and does arrange accommodation immediately". NASS had simply failed to explain why the delays had taken place and a declaration was granted to this effect.
71. In Anufrijeva v Southwark London Borough Council  EWCA Civ 1406  2 WLR 603. Here, the Claimants did not use delay per se as a ground of review, but rather complained that maladministration in the form of delay amounted to a breach of their Article 8 rights. The appeals arose from the failure to provide them with benefits ranging from accommodation, financial support and permission to enter the United Kingdom.
72. Lord Woolf CJ observed that Article 8 could impose a positive obligation to provide support. However, before inaction could amount to a lack of respect for private life, there had to be some ground for criticising the failure to act: "There must be an element of culpability. At the very least there must be knowledge that the Claimant's private and family life were at risk". Furthermore:
"Where the complaint is that there has been culpable delay in the administrative processes necessary to determine and to give effect to an Article 8 right, the approach of both the Strasbourg Court and the Commission has been not to find an infringement of Article 8 unless substantial prejudice has been caused to the applicant." [emphasis added]
73. Lord Woolf CJ stated that it was not necessary to show that the acts of a public authority had so far departed from the performance of its duties to amount to a denial of its duties. The proper test was "to have regard to the extent of the culpability of the failure to act and to the severity of the consequence."
74. Similar levels of substantial prejudice to the Claimant and inexplicable delay on the part of the public authority were condemned by Harrison J in Miyanger. The applicant was an immigrant who had an adult disabled daughter confined to a wheelchair, prone to epileptic fits when she would become doubly incontinent. The housing authority issued two decision letters refusing the applicant any assistance. Upon being given permission to judicial review, the housing authority withdrew its decision letters and promised a fresh decision. However, no decision had been issued by the hearing. The applicant applied for an order of mandamus to compel the authority to determine the application within 28 days. Harrison J stated that he was
"quite satisfied that the present unsatisfactory state of affairs should not be allowed to continue?. There is no knowing what action has been taken by the respondent to find out the progress of the Secretary of State's investigations, if any, and there is no information as to when the Secretary of State's response is likely to be available. I find that wholly unacceptable. In my view, firm action is required to ensure that the applicant's application is now determined with expedition."
75. In contrast, in R v Merton London Borough Council ex parte Sembi  32 HLR 439, the disabled Claimant complained about delays in providing her with suitable accommodation. Jowitt J emphasised that it takes time to find a suitable property, it cannot simply be conjured up. He acknowledged that the respondent had let some time slip by after accepting its duty to provide her with accommodation, and could have pursued its search with greater vigour. However, by the time of the hearing it had provided her with accommodation. He concluded:
"Bearing in mind the difficulties which a housing authority can face, and did here, in finding suitable accommodation, I am unable to say, even taking account of earlier delay before sufficiently vigorous steps were taken, that the respondent has by now failed to discharge its duty."
76. It seems that in the housing and welfare context a complaint of delay by itself will only succeed if the claimant can establish serious prejudice and that the actions of the state are culpable. This is consistent with traditional public law grounds of review which will usually involve a consideration of prejudice and culpability in any event.
The court will have regard to the existence of alternative remedies
77. The courts are reluctant to entertain judicial review claims based on delay where there is an alternative remedy.
78. Lengthy consideration was given to the existence of alternative remedies by Sir Louis Blom-Cooper QC, Deputy High Court Judge in R v London Borough of Lambeth ex parte Crookes (1997) 29 HLR 28. Challenges to local authority decisions exclusively on the grounds of procedural irregularity, may also be regarded as claims that the applicant has sustained injustice as a consequence of "maladministration" by the local authority, "to use the language of ombudsmanry". There is an overlap between cases clearly within the jurisdiction of the ombudsman and those with which the courts can deal. "Every procedural irregularity is likely to exhibit maladministration. But not every act of maladminstration will be encompassed by procedural irregularity." The court must always ascertain whether or not it should exercise its discretion to grant relief rather than leave the complainant to invoke the alternative remedy.
79. As the courts are "less well equipped to take on functions of handling individual grievances and of setting and maintaining standards of good practice", Sir Lois Blom-Cooper felt that claims of maladministration should be more appropriately directed to the ombudsman who enjoys broader investigative powers than the court; his services are free, and so avoids litigation costs which can outweigh any award of damages made; and his remedies are potentially more effective, whereas "the remedial powers of the court do not significantly improve the situation of the complainant against the local authority".
80. It is precisely because access to justice "is achievable as often through institutions other than the courts of law" that the courts are reluctant to entertain challenges of pure administrative delay or maladministration which are simply "dressed up in the language of procedural irregularity for the purposes of judicial review".
What is the appropriate remedy?
81. As with Article 5(4) and 6(1) cases, the remedies can be limited and a declaration is often considered sufficient. In Lafarge, for example, despite evidence of "scandalous delay", Lord Hardie considered that a declaration to the effect that the respondent ministers were in breach of their statutory duty by failing to determine the application within a reasonable time, and this also amounted to a breach of Article 6, was sufficient. Lafarge illustrated the court's reluctance to specify a time limit, even when they are prepared to make a declaration. Lord Hardie refused to define "reasonable time" with precision.
82. The courts are also reluctant to consider the merits of decisions or the allocation of resources, especially when the declaration would be purely academic. As Stanley Burnton J emphasised in Salih, the court cannot specify what resources must be devoted to administering a scheme and it "must avoid making a declaration that does not respond to changes in circumstances or the facts of individual cases."
83. Nonetheless, in exceptional cases, the courts will make a declaration where it is not strictly necessary to provide relief for the applicant. In Salih, by the time of the hearing, the Claimants had obtained accommodation. Any remedy was academic. Nevertheless, Stanley Burnton J made the declaration sought, stating:
"I appreciate that, if I do not make a general declaration concerning NASS's delays, the result may be more applications for JR and the attendant costs, and more applications for interim injunctions..."
84. Where the court is asked to quash the decision and make an order of mandamus, it often finds it unnecessary to make an order requiring a public body to perform its function properly. Indeed, in the Dental Practice Board case, although the Board's decision was quashed, the order for mandamus sought was not awarded because it was "by no means clear that a lawful determination by the Board would necessarily result in payment". This case clearly illustrates the court's reluctance to encroach on the powers of the public authorities.
85. Often, the courts do not even address the issue of damages. This is unsurprising, even where Convention rights are engaged, since "the primary object of the proceedings will often be to bring the adverse treatment to an end"
Para 47, referring to para 24 of Scott Baker J's decision.
Under section 72(1) of the MHA, it is necessary to consider, among other things, whether the patient is suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment or whether it was necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.
See the references to potential distinctions between patients made at paras 56 and 57.
Note that in that case Lord Philips MR concluded that in that case the application had not been heard speedily.
Article 5(4) has particular application in cases of this nature because a prisoner's dangerousness can alter with time and is the only justification for continued detention. In Noorkoiv, Simon Brown LJ stated that "given the imperative need to release any post-tariff prisoner who no longer remains a danger, any system tending to delay such release requires the most compelling justification". None of their Lordships was persuaded that any such compelling justification existed in that case.
The discussion followed from the Strasbourg decision in Oldham v United Kingdom (Application No. 36273/97, 26 September 2000) in which there was an apparent tension between the suggestion that one year represented, generally speaking, the outer limit of a speedy review within Article 5(4) and the insistence that speediness is fact-dependent.
See para 14 of Murray and para 48 of Day.
See King v Secretary of State for the Home Department  EWHC 2831 in which the Home Secretary submitted that it is reasonable for a decision to be informed by an assessment of a prisoner over a sustained period of time and for this reason prisoners are assessed in open conditions for a period between 18 months to two years. At para 15, the Court considered that whilst this furnished the parole board with more information, which could benefit both the Board and the prisoner, it did not address or give weight to the right of a prisoner to have the lawfulness of his continued detention reviewed: "On this argument a prisoner in closed conditions who has not progressed to open conditions would never be entitled to a review of the legality of his detention. That cannot be right".
Para 15 of King (supra)
Para 14 of King (supra)
Para 58 of King (supra)
Note that the origin of this submission was Lord Phillips MR's observation in R(C) v MHRT that the practice of listing cases for eight weeks after the application date was "bred of administrative convenience, not of administrative necessity". However, it was the view of Buxton LJ that "the necessity that the court was referring to was not something forced on the administrators by the nature of the administrative machinery; but, rather, a need in some particular cases for preparation and review that might take up the whole of the eight-week period." (para 26).
A State cannot, for example, rely upon excessive workload or the impact of the vacation period: Bezicheri v Italy (1989) 12 EHRR 210, 215, para 25; E v Norway (1990) 17 EHRR 30, 57, para 64.
For example, applications under s.2 of the MHA.
See Lord Bingham's speech in Dyer v Watson  1 AC 379, para 55, where he said that problems resulting from such "practical realities" may excuse delay in the context of Article 6(1).
See para 47. This approach was consistent with the ECtHR's approach in Koendjbiharie v The Netherlands (1990) 13 EHRR 820, which concerned the detention of a mentally ill person. The Court held that, on the face of it, a lapse of time of more than four months appeared incompatible with the notion of speediness. The Government supplied no information capable of justifying their period, and there was accordingly a failure to comply with Art 5(4) ECHR. Similarly, see para 48 of Musial v Polans (2001) 31 EHRR 29, where the Court found that the Government of Poland had "failed to show that there were in this case such exceptional grounds as could justify the period [of delay] in question".
Para 19. In this respect, Lord Bingham at para 9 approved the judgment of the Court of Appeal in Anufrijeva v Southwark London Borough Council  EWCA Civ 1406,  QB 1124 paras 52 – 53.
See Para 11.
Pecuniary or special damages were not considered in this case.
See Para 14 for a consideration of the Strasbourg jurisprudence on this subject.
See Para 16.
The question of damages in the above-mentioned case of KB was reserved to this hearing.
See the principles enunciated at paras 47, 50, 53, and 64, which have now been disapproved. [FIND TORT PARA]
See, for example, Mignon v Poland (Application No. 242244/94) (unreported) 25 June 2002 and the other cases referred to at para 35 of KB.
See, for example, Delbec v France (Application No. 43125/98) (unreported) 18 June 2002 and the other cases referred to at para 37 of KB.
Silver v United Kingdom (1991) 13 EHRR 582, 583, para 10
After assessing the evidence, Stanley Burnton J awarded all but two of the Claimants damages ranging from £750 to £4,000. None of them could satisfy the Court that they had been unlawfully detained.
See King, in which the Court acknowledged that the Claimant was in principle entitled to damages under Article 5(5). However, "taking into consideration K's conduct which led to his return to closed custody, it was very unlikely that there had been any loss, or that any annoyance suffered would suffice to justify an award of damages" (para 16). In the circumstances, it was only willing to make a declaration that there had been a breach of Article 5(4).
Procurator Fiscal v Watson and Burrows  UKPC D1  1 AC 379, per Lord Hope at para 85
See, for example, R v Horseferry Road Magistrates Court, ex p Director of Public Prosecutions  COD 441.
See Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55, para 18; Stogmuller v Austria (1969) 1 EHRR 155, para 5.
See H v France (1989) 12 EHRR 74, para 58.
Para 99. See also Eckle v Federal Republic of Germany (1982) 5 EHRR 1 at 27; Vernillo v France (1991) EHRR 880, paras 30-38.
Especially Lord Bingham at paras 30 to 55 and Lord Hope at paras 72 to 85
Lord Bingham set out each of the three Konig factors or areas of enquiry at paras 53 to 55. Having regard to those factors, their Lordships found that a delay of 20 months between police officers being charged and their case coming to trial was not a period which caused real concern. In contrast, a delay of 28 months for a case involving a child being brought to trial constituted a breach of Article 6(1).
His Lordship reiterated this in the later case of AG's Reference (No.2) of 2001  UKHL 68  2 AC 72, para 22.
Procurator, para 52
These Privy Council cases did not involve Article 6(1) but similar reasonable time requirements enshrined in various Commonwealth Constitutions. As Lord Steyn explained in the case of Darmalingum v The State  1 WLR 2303 at 2308, the "stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights".
In particular, the Lords were referred to Flowers v The Queen  1 WLR 2396 where there was a delay between the defendant being charged and the date of trial. The defendant was tried three times in six years but the defence was not held to be prejudiced or impaired by the delay.
Para 27. Note that he did not doubt that the result of those cases was not correct, however.
AG's Reference No.2 of 2001, para 16
Per Lord Hope of Craighead in Porter v Magill  UKHL 67  2 AC 357, para 83:
"For the purposes of the Convention the category into which the proceedings are placed by domestic law, while relevant, is not the only consideration. The Court is required to look at the substance of the matter rather than its form, to look behind the appearances and to investigate the realities of the procedure: Deweer v Belgium (1980) 2 EHRR 439, 458, para 44."
Objections were made to the auditor about the housing policy that was adopted by the housing committee. However, the auditor took seven years before concluding that the housing policy was unlawful and his decision was appealed. The appellants complained that a ten-year interval between the relevant events and the hearing meant they were prejudiced by having to adduce evidence when so much time had elapsed. The appellants were allowed to rely on Convention rights, irrespective of the acts in question predating implementation of the 1998 Act.
Porter v Magill, para 109
See Zimmerman and Steiner v Switzerland (1983) 6 EHRR 17 where the European Court held that excessive workload and chronic backlog provided no more than a partial excuse for the delay.
His Lordship gave several examples of exceptional circumstances, including unexpected illness of the prosecutor or a sudden and unforeseen surge of business in the courts. In Porter v Magill, the complexity of the case, the immense scope of the auditor's investigations, and his constant activity in the pursuit of information meant that the proceedings did not exceed the reasonable time requirement of Article 6(1). (See the speech of Lord Hope at paras 111 to 114.)
See Para 8 of Greenfield and our discussion at para [XXXXXX] above.
See AG's Reference No.1 of 1990 (1992) 95 CAR 296 held that stays would be appropriate only in exceptional circumstances.
Their Lordships refused to follow HM Advocate v R  UKPC D3  1 AC 462 where the Privy Council held that s.57(2) Scotland Act 1998 the Lord Advocate of Scotland from pursuing criminal proceedings where there had been a breach of a defendant's right under Article 6(1) to have the charges against him determined within a reasonable time. See Mills v HM Advocate  UKPC D2  1 AC 441 where the Privy Council came to the opposite conclusion and left the devolution question for another day. (Lord Hope, 453C.)
Para 20. See also the speech of Lord Hutton in Dyer v Watson  1 AC 379, para 121.
Para 20. Although Lord Bingham acknowledged that the European Court examines cases retrospectively and cannot quash convictions, he felt it was "significant" that it has never treated the holding of a hearing as a violation or a proper subject of compensation. Indeed in X v Germany (1980) 25 DR 142 at p144, the Commission was sceptical that such a right to a discontinuation or stay could be deduced from the Convention and confirmed that if it did it would only be in very exceptional circumstances. In Bunkate v The Netherlands (1993) 19 EHRR 477 at 484 para 25 the European Court held that it was incorrect to assume that delay automatically results in the extinction of the right to execute the sentence and that if the sentence has been executed it is unlawful with retroactive effect. Therefore even though the court found a violation of Art 6(1) the claim for just satisfaction was rejected. Similarly, in Eckle it was held that just satisfaction for the protracted delay did not mean that the prosecution, conviction and imprisonment were also in breach of the Convention.
For example, Darmalingum, where the shadow of criminal proceedings had hung over the Defendant's head for 15 years.
Paras 7 – 19
See Para 17
AG's Ref No.2 of 2001, per Lord Bingham at paras 13 and 14
Per Gibson LJ, para 161. N.B. in other cases where there have been delays, censure of the judge was enough.
Foot and Mouth in the Courts
New Law Journal, Vol 15, No 1515, January 2001
After the slaughter cometh the accounting. Whether or not there is a public inquiry into this government's handling of the foot and mouth ("FMD") crisis, we might have expected heads to roll in court, where the real accounting should take place. But if the first skirmish of foot and mouth litigation is anything to go by, the message for farmers is this: forget it, don't bother. The judiciary, so vigilant in its policing of ministerial policy in relation to immigration, asylum and surveillance, seems to be preparing a no-go zone on FMD. Read Westerhall Farm v Scottish Ministers , and you will enjoy a free trip back in time, to the days before CCSU , before Padfield , even before Ridge v Baldwin, when the executive went about its dirty work and the judges stuck to their knitting.
First, a brief account of the facts of the case. After the outbreak of foot-and-mouth disease in Scotland, the respondents announced a slaughter policy which included provision for the culling of all livestock, whether infected with the disease or not, on farms within three kilometres of a confirmed infected area. In April 2001 an outbreak of the disease was confirmed on an agricultural holding contiguous with Westerhall Farm. The steading of the former was less than three kilometres from the boundary with Westerhall, but that boundary lay on high, boggy ground unsuitable for the grazing of livestock. Shortly afterwards the petitioners were notified that all their livestock would be slaughtered. By their petition they challenged that notification on the grounds that: (i) the policy of slaughtering all relevant livestock within a three-kilometre radius of an infected area was contrary to Council Directive 85/11/EEC; (ii) the policy was inflexible and disproportionate; (iii) no adequate reasons for the decision had been given and the petitioners had no opportunity to appeal or right to be heard, contrary to Article 6 European Convention on Human Rights; (iv) the policy was a disproportionate invasion of their property rights under Article 1 Protocol 1 and (v) the procedures by which the policy was introduced and applied were contrary to Scottish administrative law and were irrational. The petitioners sought interim relief suspending the slaughter pending a full hearing of the petition.
Lord Carloway, giving the opinion of the Outer House, refused them leave to reclaim. He held that the Directive concerned only the minimum preventative steps required by Member States, and was in no way a comprehensive and exhaustive code. Therefore the responsible authorities of member states were at liberty to take measures beyond those specified in the Directive. As far as the policy argument was concerned, his Lordship concluded that there was nothing inherently wrong with a rigid policy, provided that it did not fetter the respondents' discretion in individual cases. There was no such fetter in this case. In answer to the petitioners' Convention complaints, the Court observed that they had been able to challenge the slaughter decision by this petition. That decision had been taken by a suitably qualified official acting with the benefit of expert scientific advice. The respondents had struck the correct balance between the public interest and the petitioners' private property rights. In those circumstances, the Convention was not engaged. In any event, there was nothing in the procedure adopted that was contrary to Scottish administrative law. Finally the Court concluded that the balance of convenience favoured permitting the slaughter to proceed.
The central challenge in this case was addressed at one of the most controversial elements of the government's FMD policy, that authorised the slaughter of cattle, as well as sheep and other susceptible species, on farms which are next to a farm where there is confirmed infection, without any need for infection to be identified on these contiguous premises. The EU directive only authorises slaughter of infected animals on contiguous sites . Insofar as the Directive refers to emergency measures to be taken within a radius of 3 kilometers of infected areas, it enjoins states to take into account natural boundaries.
In the light of this, the petitioners appeared to have some forceful arguments on their side. Given the location of their sheep, there were good reasons to consider an exception to the rigid policy of contiguous slaughter. It was very unlikely that the virus had travelled up a high ridge and gone down the other side,
especially given the direction of the prevailing wind.
The court's response is a depressing one, and, it is submitted, not consistent with recent rulings on administrative decision making in other areas, where there is increasingly an emphasis on the need for a case by case approach, respect for individual circumstances, and the responsible use of discretionary powers. Lord Carloway said
"The policy itself had been devised upon expert advice and the respondents had, as a matter for their discretion,determined to implement it. Having decided to implement it, it would be somewhat
absurd, in the circumstances here, to create exceptions to it (i.e. to leave areas unculled)."
What this appears to suggest is that if the executive adopts an inflexible policy, then you cannot challenge its application. Logical though that may seem, it misses the point of the petitioners' argument. The thrust of their attack was against the inflexibility of the policy itself (as they were perfectly entitled to do) not the manner in which the respondents were implementing it; because after all if you adapt an inflexible policy, you are fettering your discretion so that you cannot implement it in any way that is flexible.
The response to the petitioners' Convention arguments was equally bleak. In essence, the petitioners contended that the lack of safeguards by way of an appeal and a right to be heard in their opposition to the slaughter policy was a disproportionate response to the problem, and that this lack of proportionality meant that they had suffered an unjustifiable denial of their due process rights under Article 6. In answer to this, Lord Carloway opined that
"Proportionality was a flexible tool and had to take into account the emergency situation which had arisen and the need to take swift action in the public interest. Such action was not compatible with the occurrence of hearings involving experts and lawyers. In the time which it might take to organise and hold a hearing, the virus could have spread."
As any graduate of public law will tell us, this kind of talk - "swift action in the public interest"; "emergency situation", along with the cursory dismissal of "hearings involving experts and lawyers" - is anathema to modern judicial review, a throwback to the pre-Wednesbury era when individual interests were overshadowed by the exigencies of war and judicial review was little more than a tool to legitimise executive action. Now, administrative law requires that limits be imposed on government by rule if individual justice is to be recognised - this goes back to the principle that discretion should not be so fettered that the individual should be permitted to say something about his case. If he is to be deprived of an opportunity to put his argument to the decision maker, no amount of appeals to the "emergency" of the situation is going to disguise the fact that a basic requirement of good and fair administration is being denied: that of natural justice. If the courts are so quick to accept the ipse dixit of the government that a particular course of action is the only way ahead, there is no point in judicial review at all.
We do not even need to reach for the more detailed Convention rights to feel that this judgment falls somewhat short of the home grown principles of good administration and its guardian, judicial review. The right to reasons, for example, though not yet a common law duty of decision makers, has become a growing entitlement in English administrative law . In this case, the Court appeared to accept the reasoning as adequate:
"As was indicated in the Form D Notice, the reasons were that the petitioners' holding was within the three kilometre radius of an infected farm and that therefore, in terms of the published policy, the livestock would be slaughtered. That reasoning may not appeal to some but it is clear, if concise, in its terms."
But again, this is wide of the mark. The petitioners were arguing, in classic judicial review terms, that the enabling provision required the Minister to have "reasonable grounds" for suspecting an animal has been exposed to the infection of disease before issuing a Form D notice, and that in their case, these reasonable grounds had not been made out. Reasons should be revealed, because it may be that they disclose a misdirection, irrelevancy or failure to comply with Parliament's purpose, and therefore the subsequent decision is outwith the Minister's powers, not only under the enabling Act, but under the relevant European Council Directive The Notice did not explain why livestock such as the petitioners' should be culled in order to stop the spread of the disease. It simply stated that "sheep..on farms within 3km of any infected farm…will therefore be culled." That is not a reason; that is a statement of intent. If reasoning only has to fit the requirements of clarity and concision, as Lord Carloway appears to suggest, the most inadequte backing for any bad decision would pass muster.
The same goes for the Court's rejection of the Article 1 Protocol 1 argument. Quite clearly the entire battery of measures adopted by this government in response to the FMD crisis is an invasion of private property interests. What needs to be addressed in a dispassionate and rigorous manner is the argument that such wholesale invasion is justified in the public interest. It is unfortunate that the Court of Session has missed the opportunity to open that debate, preferring instead to invoke the government mantra that the measures were in the public interest. The question that waits to be addressed is whether compensation, given to farmers of rare breeds that are for one reason or another irreplaceable, does or does not legitimise breach of Article 1 Protocol 1, if that compensation is of no use to the property owner. In this case, the peititioners will not be able to replace their particular livestock since they had been "hefted" (accustomed) to the particular grazing conditions of that farm over generations. Strasbourg case law indicates that the taking of property without payment of an amount "reasonably related to its value" would normally constitute a disproportionate interference which could not be justifiable under Article 1 Protocol 1 . Clearly the right to peaceful enjoyment of possessions cannot, and does not, carry with it a right to full compensation in all circumstances, but the quid pro quo for being exposed to state interference with property rights, as farmers have been during the FMD crisis, is the onus on the government to prove that this interference with private interests is proportionate. The petitioners said that it was not; however, their proportionality argument here was dealt with in the same way as it was under Article 6; the requirement for "swift and effective action" rendered the respondents' action proportionate.
Footage from the current crisis in America and the Middle East has blotted out images of burning pyres of animals on our rural landscape; our Prime Minister shoulder to shoulder with the US President has overtaken the picture of the same Prime Minister looking austere in a veterinary white coat, scaring tourists in their droves away from these diseased shores. I suggested at the beginning of this article that heads might roll in the aftermath of the foot and mouth business (which is still unfinished). But if Westerhall is indicative of what lies ahead, the worst that our government can expect from the judiciary, to borrow a dreadfully appropriate metaphor, is a savaging from a dead sheep.
In the Autumn of our lives
New Law Journal, Vol 152, No 474, January 2002
It is a truth universally acknowledged that dotty elderly persons at large in the community should be locked up for their own good and the good of the general public. Unless, of course, those persons happen to be occupying the Bench at the Court of Human Rights in Strasbourg. At the end of last month the Court handed down judgment in H.M. v Switzerland (Application No 39187/98). It concerned a pensioner in her eighties who was somewhat infirm and nearly blind but otherwise capable of making decisions for herself. She had been receiving assistance from a home help service but the visits stopped after a while because certain conditions had not been respected, concerning access to the house, heating, washing and meals. In due course, the local Government Office ordered, against the applicant's will, that she be placed for an unlimited time in a nursing home, on the ground of serious neglect. Both she and her son appealed, unsuccessfully. The Appeal Commission found that the placement was justified on the grounds both of neglect and the applicant's mental state. The Commission arrived at their finding of senile dementia without the assistance of a doctor's report on the applicant.
The applicant complained about being placed in a home against her will, claiming that she could wash and dress herself, that her son (though himself an invalid) could cook for her and that she did not want him to be left alone. In the nursing home she was no longer free to decide where she lived, to take decisions concerning her everyday life, or to go home.
What the Court had to consider was whether she had been unlawfully deprived of her liberty, contrary to Article 5 of the Convention on Human Rights. Astonishingly, the majority concluded that Art 5 had not been engaged at all.
They took the view that the applicant's placement in the nursing home was a responsible measure taken by the competent authorities in the applicant's own interests, in order to provide her with the necessary medical care and adequate living conditions. It did not, therefore, amount to a deprivation of liberty within the meaning of Art 5(1).
The author has noted before in this journal the double standards applied by the Court of Human Rights in cases involving elderly applicants (see the comment on the case of Sowaniuk v UK, "War Crimes in the Dock" (2001) 151 NLJ 6994 p 1118). This judgment demonstrates a prejudice that would be unpardonable if it were based on race, sex or religion. But ageism does not seem to embarrass the court, however conspicuous.
Let us look briefly at the legal position. Under the Swiss Civil Code a person can be deprived of their liberty on grounds of neglect or mental weakness, not necessarily both; these grounds are disjunctive. The Convention on the other hand provides that an individual may only be deprived of his or her liberty if they have been found to be of "unsound mind" or are "vagrants". The term "unsound mind" is unspecific and unscientific and is giving way in modern parlance to more precise definitions of mental deterioration, such as "Alzheimer's". Quite what constitutes "unsound mind", for the purposes of Art 5, is therefore crying out for re-examination. As for "vagrancy", the leading authority is still De Wilde, Ooms and Versyp v Belgium (Series A no 12, p 37) a case decided in 1971, and certainly showing its age. That case defines the conditions for "vagrancy" with one eye on the protection of the public, rather than the interests of those individuals defined as "vagrant", a focus which perhaps needs readjusting in modern times.
So this case represented an invaluable opportunity for the Court to remodel this component of Art 5 into a shape more appropriate for the 21st Century. By concluding that the Convention was not engaged at all the Court passed up this opportunity.
But this judgment is also unfortunate for other reasons. As Judge Loucaides points out in his dissenting opinion, if the detention is seen to be a "responsible measure for [the individual's] own good", it could "open the door to uncontrolled arbitrariness and real and unwarranted dangers to the freedom of the individual which the Convention aims to avert". The safeguards of Art 5(1)(b) should prevent the danger of a deprivation of liberty of, for example, elderly people at the instance of persons (like relatives) who seek to make a personal profit from the compulsory removal of such people to institutions on the general, feeble grounds of "mental weakness" or "senile dementia".
As another of the dissenting judges (Jûrundsson) observed, there were conspicuous factors pointing to such a conclusion—the police were employed to implement the measure, which was of unlimited duration and served the purpose of ensuring that the applicant did not leave the foster home. The applicant was not permitted to leave the institution and go home; and if she did, she would have been brought back to the foster home. Finally, power to take this action was referred to by the national authorities themselves as a measure of deprivation of liberty. Only in the strange looking glass world of Strasbourg jurisprudence could the applicant's situation be conceived of as anything other than a deprivation of liberty.
The line taken by the majority in this case is not only unattractive but somewhat irresponsible in contemporary society, when an increasingly large proportion of the population is surviving to an age when care and support is required in a manner that is compatible with Convention rights to autonomy and liberty.
Environmental Human Rights post Marcic and Alconbury
David Hart QC
New Law Journal, Vol 152, April 2002
First, there was a trickle, then there was a flood. Environmental human rights lawyers can now justify some of the brouhaha which attended the coming into force of the Human Rights Act 1998 (HRA), if the quantity of case law is anything to go by. This article seeks to update readers on developments in two particular areas, namely Article 8 claims in the light of the appeal in Marcic and Article 6 challenges after at least 8 post-Alconbury skirmishes.
Substantive Article 8 challenges
The first reading of the Court of Appeal's decision in Marcic v. Thames Water (1) may cause some disappointment. Avid readers may recall my ill-concealed excitement at the decision last November (2), in which Mr Marcic recovered under Article 8 for the repeated flooding of his house by his local sewers. A first-instance finding that human rights made all the difference between failure (at common law) and success (under section 6 HRA/Article 8) has now been truly and deeply absorbed into a ruling by the Court of Appeal that the common law always allowed such a claim in nuisance after all. Human rights do not feature at all in that part of the analysis. But those attuned to the subtler stirrings of sewage law may still be surprised that the Court of Appeal could so effortlessly sidestep 120 years of apparently contradictory precedent. This had one obvious effect. Mr Marcic could recover under the common law damages for all losses caused to him, not just those which had occurred since the coming into force of the HRA. It also has had the effect of preventing Marcic becoming an inevitable citation for all those whose common-law cases in this area are doomed to failure.
That said, and assuming, as we must, that Article 8 had no visible effect on that common law determination, the case still contains statements of some considerable interest. As well as the claim in nuisance, Mr Marcic was adjudged to have claims under Article 8 and Article 1 of the First Protocol to the Convention. A formidable argument that Parliament had sought to secure a fair balance between Mr Marcic's rights and public interests by statutory provisions securing enforcement by public law methods, not private law damages claims, met swift rebuttal.
More wide-ranging are the implications of a short coda to the judgement, headed "Unanswered questions". At paragraphs 116 to 118, the Court reflected on the implications of a dictum by the judge to the effect that if Thames had devised and applied a system of priorities which was "entirely fair" but still with the result that Mr Marcic received his regular dose of sewage, then this might amount to a fair balance between the competing interests of Mr Marcic and Thames' other customers. Not so, said the Court. If Thames carried on an undertaking in the interest of the community as a whole, then the only way of striking a fair balance would involve Thames paying compensation to individuals whose rights were infringed. But this raises the question: would the flooding be unlawful or not? Traditional theory has the flooding as either unlawful in which case prima facie an injunction would be granted, or lawful in which case neither an injunction nor damages would be available. These observations suggest that the law might be moving towards an intermediate position in which the violation was not simply flooding, but flooding unattended by compensation.
Whilst still on substantive Article 8 challenges, the night flights case, Hatton v United Kingdom (3) , may not have run its course yet. The Government is seeking to persuade the Grand Chamber (namely, the plenary court) of the European Court of Human Rights to re-hear the case, on the basis that "serious questions regarding the interpretation and application of the Convention are in issue" (4). It claims in its letter of request that "either no margin of appreciation at all or a very narrow margin of appreciation" was allowed in the judgement.
Article 6 challenges
Since the decision in Alconbury (5) , there have a cluster of challenges seeking to exploit the issues left open by the House of Lords. It will be remembered that the SSETR's system of call-ins and recovered appeals was compliant, because the combination of the quasi-judicial, albeit not "independent and impartial", inquiry and the availability of judicial review met the Article 6 tests. There was articulated a division between (a) true policy issues which should never be susceptible to review (b) legal questions which were the typical subject matter of judicial review and (c) factual issues for the determination of which judicial review was ill-suited. In the last, namely a case where the local planning authority - often non-compliant through lack of independence or impartiality - came to a decision of fact, could it be argued that the third party directly affected by this had a valid Article 6 complaint that he had not had a fair hearing of his civil rights?
The short answer is that the jury is still out on this, though there is a high level of judicial scepticism about most of the claims. In particular, the cases reveal careful scrutiny by the courts as to whether the rights or interests of the claimants are sufficiently directly affected by the planning decision in question or are of such a nature that they can properly be regarded as violated. These themes can be seen in the following cases.
R (Vetterlein) v. Hampshire CC (6), a decision of Sullivan J in June 2001, is first in time. This challenge was to the grant of planning permission for a waste incinerator at Marchwood. It failed on a number of levels. The main ground was that excess nitrogen dioxide emissions would be given off by the new incinerator. The judge held that (i) the objectors had no more than a generalised concern about increased nitrogen dioxide emissions, such as did not engage Article 8; (ii) the objector's connection with the planning decision was "tenuous at best", and the decision was not "directly decisive" of such rights as they might have; hence they, had no Article 6(1) rights to be engaged (iii) even if they, they had had a fair hearing before the planning committee; they did not need the protection of a quasi-judicial inquiry, because there were not really any disputes of fact, as opposed to disputes about the implications which should be drawn in policy terms from the available facts.
Three weeks later came the decision of Richards J in R (Kathro) v. Rhondda Cynon Taff CBC (7) . Local residents affected by increased traffic movements to be caused by a proposed council-sponsored development sought a pre-emptive strike to stop the local council determining its own planning application. The challenge was dismissed, but Richards J contrasted the decision-making process before an inspector with that provided by the local planning authority, observing that the latter made "it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based upon a view of the facts that was not reasonably open on the evidence" (8), and concluded that "For those reasons there is a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with article 6 overall."
October saw the next step, namely the rival Norwich shopping centre case of Friends Provident v SSETR (9) in which Forbes J rejected a challenge to the Secretary of State's refusal to call in the application. He held, however, that Friends Provident's rights to "use, enjoy and own" its shopping centre were engaged by Article 6(1), and that these rights would be "directly affected" by the grant to permission to the rival developer. This was in response to submissions that Friend's Provident's rights were merely economic and tenuously connected to the proposed development. The challenge was dismissed on the basis that, although the issues in the case such as the impact of the proposed development upon the city centre and traffic contained elements of fact, they were in substance matters of planning judgment, in respect of which the quasi-judicial procedures of a public enquiry were not required in the light of Alconbury.
The next inter-developer fight occurred in November, this time concerning Gloucester. Elias J in British Telecom v. Gloucester CC (10) at paragraphs 154 to 156 warmly endorsed the approach of Richards J in Kathro on the fact/judgement/policy issue, contrary to a submission based upon Friends Provident. He added that the fact that planning authorities do not typically give reasons made "it virtually impossible for the parties to know how the decision was reached", and hence rendered effective judicial review even the more difficult. A similar line was taken by Nigel Pleming QC sitting as a deputy High Court in R (Langton) v. DEFRA & Derbyshire CC (12) at paragraphs 79 and 80; he considered the rival emphases of the Vetterlein and Kathro approaches and preferred the latter.
But this rather more expansive Kathro approach to Article 6 protection was severely qualified by Ouseley J in R (Cummins) v. SSETR (12), especially at paragraphs 344-5 and 353 and by Collins J in R (Adlard) v. SSETR & Fulham Stadium (13)  EWHC 7 (Admin). In Cummins, Ouseley glossed Richards J's statement of principle thus; "At most, he is keeping open the possibility that in very particular circumstances not envisaged, compliance with Article 6 might require a different process." To separate fact from judgment was not required by Alconbury; further, Ouseley J consider that "The determination involved in the decision whether or not to grant planning permission is a single determination comprising a whole range of issues and types of judgement, which cannot be compartmentalised and parcelled out" (14).
The last case I shall touch on is Langton (supra), unlike the rest, not a planning case. Simplifying the facts a little, DEFRA served a disposal notice under the Animal By-Products Order 1999 on Mr Langton in respect of maggot waste accumulating upon his land. He refused. So the County Council carried out the works. No appeal lay against the disposal notice. The judge ruled that this procedure was Article 6 compliant in the context of that particular case, but only because the true underlying issues were ones of policy or expediency: did the (agreed) level of risk warrant the works in question? He also held that the Council had acted proportionately in reaching their decision to carry out those works. Interestingly he left open the possibility of there being cases "where the factual dispute was so clear-cut and the consequences for the recipient of the notice…so serious that nothing less than a full investigation of the case of the merits would do to satisfy the requirements of the Convention." One solution he proposed for that was that the judicial review court (as opposed to the original decision-maker) hearing evidence and deciding for itself, as in the recent mental health case of R (Wilkinson) v. Broadmoor  1 WLR 419 (15).
Summarising the effect of the planning cases, the battle continues, between those judges who regard it as impractical and potentially undemocratic to extend full Article 6 protection on all issues of fact taken in the course of decisions by local planning authorities, and those who are sceptical about the lack of transparency and of procedural safeguards in the present system, and are all too aware that judicial review is an ineffective remedy in the absence of reasons. The fascination in the debate is that there is much of merit in both sides' arguments.
(1)  EWCA 65, 7.2.02
(2) 151 NLJ 1598
(3) (2002) 34 EHRR 1
(4) See the UK's letter of application in JPEL March 2002 at p.286
(5)  2 WLR 1389
(6)  Env LR 198, 16.6.01, which Sullivan J followed in R( Malster) v.Ipswich BC  EWHC Admin 711, 17.8.01
(7)  EWHC 527, 6.7.01
(8) At paragraph 28
(9)  EWHC Admin 820, 19.10.01
(10)  EWHC 1001, 26.11.01
(11)  EWHC 1047, 17.12.01
(12)  EWHC 1116, 21.12.01. I understand there is a recent extempore judgement from Ouseley in Bovis Homes v. New Forest(a local plan case) to the same effect.
(13)  EWHC 7, 17.1.02; see also the same judge in R (Hammerson) v. SSETR  EWHC 270
(14) Paragraph 345
(15)  1 WLR 419