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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnett v Department Of Social Security [2001] EWCA Civ 979 (14 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/979.html Cite as: [2001] EWCA Civ 979

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL COUNTY COURT
(His Honour Judge Reynolds)

		Royal Courts of Justice Strand London WC2 Thursday, 14th June 2001

1. LORD JUSTICE SEDLEY: This case began as a small but apparently straightforward claim. Mr. Barnett, just within the six year limitation period, sued the DSS for two payments of benefit which he alleges they failed to make to him in 1994, together with £8.50 winter heating allowance which had gone unpaid in 1997. In 1994 it appears that he had sought permission to apply for judicial review but he had been told by Popplewell J that he should bring an action for debt instead. This was a course which the House of Lords had endorsed in the case of Roy v Kensingon and Chelsea Practitioner Committee [1992] 1 AC 624.
2. On an application made by the Department to Clerkenwell County Court, Deputy District Judge Muskath on 23rd October 2000 struck out Mr Barnett's claim. Unfortunately, Mr. Barnett did not include in his appeal bundle the application to strike out, but he has provided me with a copy today. The grounds read as follows:

"The claimant was issued girocheques on 4th May 1999 and on 21st May 1994 for the periods 29th April 1994 until 5th May and 27th May 1994 until 2nd June 1999. He informed the Benefits Agency that he did not receive girocheques issued on the above dates and in response to this the Benefits Agency sent missing girocheque forms QB52. The claimant never returned those completed forms which would have resulted in an immediate investigation in 1994 into the alleged non-payment and payment of the benefit if the claimant's allegation of non-payment was found to be of substance.

Please see DB1 for a summary of the action taken in relation to income support taken in this case.

That the claimant was entitled to a Cold Weather Payment in 1997 but, as a result of the passage of time, the Benefits Agency are unable to confirm whether this was ever issued. The payment was issued automatically to all those who were eligible for it 1997.

Please see DB1 for a summary of the action taken in relation to the Cold Weather payment in this case.

That the Defendant has been severely prejudiced by the passage of time in this case and that, in all the circumstances, the defendant has investigated the alleged missing income support and Cold Weather Payments to the best of its ability.

That there is an internal appeals and investigation procedure in place in any event which the claimant has failed to go through. As such, a small claim is an inappropriate forum to dispose of his claim.

To prove misfeasance in public office the claimant would have to show a deliberate and dishonest abuse of power by an official who knew that the claimant would suffer loss or was subjectively reckless as regards that outcome. The claimant has failed to show that this occurred in this case and as such, misfeasance is an inappropriate charge to be levelled at the Benefits Agency."

3. As I shall indicate in a moment, there is a letter of 28th June 2000 which casts a slightly different light upon those allegations. The final paragraph is no longer in issue. Mr. Barnett has confined himself to a straight monetary claim.
4. The date of the hearing before the District Judge is significant. It was three weeks after the coming into force of the Human Rights Act 1998. In the run-up to that date it had been widely accepted that Article 6 of the European Convention on Human Rights was going to make it necessary for adequate reasons not only to be given for judicial decisions but to be recorded. The reason why the second of these elements flows from the first is too plain to require explanation. Mr. Barnett tells me today that the deputy District Judge said simply that he was going to strike out the claim. If it is so, it was arguably not good enough. If it is not so and if a reasoned judgment was given, then it is apparent that no record whatever was made of the deputy District Judge's judgment, either by mechanical recording in court, or by counsel who appeared for the Department on its application to strike out. It is conceivable that counsel took a note, but no note was ever produced thereafter, and the Department was unrepresented when Mr. Barnett appealed from the District Judge to the Circuit Judge. The result on that appeal was exactly, on one view anyway, what the requirement of a fair trial is designed to avoid - an appeal against a decision which had to stand unless an error of law could be found in its reasoning, but the reasons for which were entirely unknown to the appeal judge.
5. On appeal His Honour Judge Reynolds did his best but, having nothing of any real use to go on, he simply said this:

"I have to bear in mind that this is an appeal rather than a rehearing, and I would have to find that the Deputy District Judge was wholly wrong in this matter. The Social Security Department have not been represented today but they were at the application below, and although I have no transcript of that hearing, I understand the basis of striking out this claim was delay, it being a substantial time from the time the cause of action arose, and the prejudice or the claimed prejudice that it is said that the DSS suffered because they cannot find their paperwork of six years previously. As I say, I have not seen a detailed transcript but that would appear from the papers to be the basis of that decision.

Having heard everything that Mr Barnett has to say, I am not able to say that the discretion which the Deputy District Judge had to strike this claim out was wrongly exercised."

6. It is possible to strike out a claim for delay during the limitation period - see most recently Clark v Lincolnshire and Humberside University [2000] ELR 345, per Lord Woolf MR at 354. Whether it was right or wrong (my present inclination is to think that it was wrong) for the judge to say that taking such a course is a matter of discretion, it is certainly a strong and unusual thing to do, especially where the difficulty in which the lateness of the claim has placed the defendant is, at least on one view, of the defendant's own making.
7. It does not stop there. Mr. Barnett has included in the bundle (I assume that it was before the judge; it was certainly known to the defendants because it came from them) a manuscript letter from a Benefits Agency officer to the Benefits Agency's solicitor dated 28th June 2000, which reads as follows:

"1. Our records show that girocheques were issued on 4/5/94 for the period 29/4/94-5/5/94 and on 31/5/94 for the period 27/5/94-2/6/94.

2. Mr Barnett would have been entitled to receive the cold weather payments in 1997 but we are unable to confirm if this was issued.

3. Mr Barnett wrote to us on 20/10/94 stating that he did not receive girocheques issued on the above dates.

On 4/11/94 two missing girocheque forms QB52 (see copy enclosed) were issued to Mr Barnett.

It appears that these forms were never returned as two missing girocheque action sheets QB51 (uncompleted) are still held in Mr Barnett's incapacity benefit file."

8. It will be immediately apparent that the data contained in this letter are not four-square the same as those set out by way of grounds for striking out in the application which I have quoted and which was issued a week later, on 4th July 2000. I find this alarming because the letter suggests fairly clearly two simple things. The first is that the Department is unable to say that Mr. Barnett was ever issued with the cold weather payment. The other is that, although girocheques were issued for periods which are mistyped and therefore misstated in the strike-out application, Mr. Barnett had in the same year, 1994, told the Department that he had not received them and had been issued with missing girocheque claim forms. The Department's records suggest that these were never returned, in the sense that they have no record of them. Mr. Barnett is clear that he did return those forms and that he has been stalled ever since in the argument about it.
9. It would not be unknown for post to go astray in the hands of the Post Office. It is certainly not unknown for Departments to lose or mis-file documents which do reach them. The fact that the Department cannot find Mr. Barnett's claim forms for the missing girocheques is anything but proof that he failed to return those forms. There is clearly an issue that needs to be sorted out. In these circumstances, I find it difficult to accept that the DSS could legitimately rely on the loss of their records or, if they were doing so, that the deputy District Judge could legitimately have given judgment on that basis. Whichever it was, the basis of Judge Reynolds' judgment, which was entirely speculative because he did not know what had happened before the District Judge, starts to look shaky. Everything goes back to the want of a proper record of what the District Judge decided and why.
10. This is on any view a very small claim. It may fail on the facts or it may not, but Mr. Barnett is entitled to have it as fairly dealt with as any wealthy litigant in the Companies Court. The proposed appeal, although a second appeal, raises at least this important point of principle and therefore gets over the primary hurdle. There is also the question of the order made against Mr. Barnett to pay the Department's costs. These matters may well merit the grant of permission to appeal; but it also seems to me that an appeal may be an added worry and expense (I know the stress that this case is putting Mr. Barnett under) when the real solution lies in simply unblocking the pipe in which it appears that the claim for two missing girocheques has got stuck. If Mr. Barnett claims to have returned but the Department claims never to have received the claim, then the sensible thing may be for Mr Barnett to be invited to put in a fresh claim and to hand it over to the Department so that it cannot get lost and can be processed.
11. I will adjourn this application so that it may be restored before me upon notice to the Department. This judgment, lengthy as it is for a judgment on an adjournment, is to be transcribed at public expense and copies provided to Mr. Barnett and the Department. I hope that the Department will be able either to communicate directly with Mr Barnett in a way that resolves this problem once and for all and makes it unnecessary for Mr Barnett to come back to court or, if the matter does come back before me, that the Department will come along with sensible and practical proposals which make it unnecessary for me to do what I am otherwise minded to do, which is to grant permission to appeal. I adjourn the application.
Order: Application adjourned as per judgment.