B e f o r e :
MR JUSTICE SCOTT BAKER
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Computer-aided Transcript of the Stenograph Notes
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MR H SOUTHEY (instructed by Edwards Law) appeared on behalf of the applicant
MS E GREY appeared on behalf of the respondent
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HTML VERSION OF JUDGMENT
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- MR JUSTICE SCOTT BAKER: In this matter there is an application by the defendant, the Mental Health Review Tribunal, to strike out the claimant's case as an abuse of the court's process.
- The circumstances are these. On and off from about 1980 the claimant has been detained as a patient under sections 37 and 41 of the Mental Health Act 1983. He sought, as he was entitled to do, to have his case reviewed by the Mental Health Review Tribunal. There was a considerable delay in listing his case for hearing. He claims that there was a breach of article 5(4) of the European Convention on Human Rights in that he was entitled to have the continuing lawfulness of his detention resolved speedily by a tribunal. Because his case had not been heard he sought permission to apply for judicial review, claiming a breach of his Convention rights. That claim was launched on 15th August of last year and subsequently he was given permission to apply for judicial review. There were in the pipeline at the same time quite a large number of other cases where the same point was being taken.
- At any rate, the claimant's case was listed before the Tribunal to be heard on 12th September of last year. But, in the meantime, on 29th August, he absconded. He left the country and he returned to Cyprus. He is, I understand, a Greek Cypriot and he has been in Cyprus ever since. Consequently, on 12th September the Tribunal was not in a position to decide his case and the inevitable result was that it was adjourned.
- I mention that there are a number of other cases raising the same point in the pipeline. They all came before Munby J when he conducted a case management conference and arranged for certain lead cases to be heard on or as soon as possible after 4th February of this year. The claimant did not appear before Munby J at the case management conference, nor was he, I think, represented on that occasion, but at any rate this case is one of those that the judge considered at the time, and, for obvious reasons, it was not selected as one of the lead cases, but it remains in the list, as it were, following the lead cases subject to this application to strike out.
- Miss Eleanor Grey, for the defendant, submits that this is a proper case to strike out because, she submits, there is no practical benefit for the claimant in allowing it to continue, or at any rate no significant practical benefit that would justify its continuation in the circumstances in the light of the overriding objectives in the Civil Procedure Rules. Rule CPR 1(1) says this:
"These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with the case justly includes, so far as is practicable -
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate -
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
- Put shortly, the court in these circumstances needs to take a close look at what is really at stake in the proceedings in the event that they continue and to deal with the case proportionately, keeping a close eye on the interests of other litigants from whom there is considerable pressure to obtain early hearings of their cases.
- My attention has been drawn by Miss Grey to paragraph 3.4.5 in the current edition of the White Book:
"The Court may strike out a claim where the claimant was guilty of conduct which put the fairness of any trial in jeopardy or which was such as to render further proceedings unsatisfactory and prevent the Court from doing justice."
- What is the position in the present case? The claimant deprived the Tribunal of making a decision on 12th September last as to whether he should continue to be detained or should be discharged. Mr Hugh Southey, on behalf of the claimant, draws my attention to evidence which suggests that his client could have made a strong case for discharge. In my judgment, it is inappropriate, and indeed quite impossible, for this court today to second guess what the decision of the Tribunal might have been if the claimant had appeared and the matter had been properly considered.
- Mr Southey submits that it is necessary for the case to continue for two reasons: one, in order for him to obtain a declaration that he was treated unlawfully within the context of article 5(4), and, two, to obtain damages which, on the face of it, are recoverable for a breach of human rights of this kind. As to the former, it seems to me that there are numerous other cases which Munby J has directed to be tried which, on the face of it, will resolve the question as to whether delay in arranging tribunals in circumstances similar to that of the claimant do indeed amount to a breach of article 5(4). There is, in my judgment, no significant benefit in allowing the claimant's case to continue for that purpose.
- The second point is that Mr Southey submits he would inevitably have a claim for damages were there a breach and he should not lightly be deprived of that benefit.
- The first difficulty, it seems to me, is that by the claimant's own actions in not appearing at the Tribunal and absconding and going to Cyprus he has deprived the Tribunal of reaching a conclusion whether he would or would not have been discharged at the end of September. Therefore, following the passage that I have read from the White Book, it seems to me that it would be quite wrong to allow him to continue with his litigation for the purpose of trying to persuade somebody at a later time that the court which was deprived of making a decision on the proper evidence would have come to a conclusion in his favour had it been provided with the proper material.
- Therefore, it seems to me that the only claim to damages that the claimant could possibly have relates to a breach of article 5(4) that in the event is not proved to have resulted in any significant detriment to him from the viewpoint of being detained for a longer period than he should. Mr Southey submits that, nevertheless, the European Court of Human Rights has on occasions, and particularly in relation to mental health cases, awarded modest damages even in those circumstances.
- Miss Grey submits that the current trend of authority in the ECHR tends to point in the opposite direction, namely Niedbala v Poland, which was decided on 4th July 2000 and which appears at divider 8 in the defendant's authority bundle, in which it is said at paragraph 89 that in that case the court considered that the non-pecuniary damage is adequately compensated by the finding of a violation of these proceedings.
- So, it seems to me, it is at the very least arguable that the best that the claimant could expect to get out of the proceedings would be a finding that his rights had been violated without an additional award of damages. But were that not the outcome, any damages that he could conceivably establish, it seems to me, would be modest in the extreme, amounting perhaps no more than a few hundred pounds.
- Miss Grey makes a point in respect of which, in my judgment, there is considerable force, and that is that in the material that the claimant has advanced in support of his case there is nothing by way of evidence to support that he has suffered any particular damage.
- In these circumstances I pause to consider what is in reality at stake. In my judgment, viewing the case in the most favourable light to the claimant, at best the only fruits of this litigation would be very modest damages, and I have come to the conclusion that in all the circumstances it would be an abuse of process to allow this litigation to continue, not least because there are a large number of other cases which raise a similar point of principle which will be resolved by the Administrative Court in the near future. As I have already mentioned, Administrative Court time is at a premium and, in my judgment, the court should not lean over backwards to assist a litigant who has put himself in a position of being beyond the seas, and has, to a large extent at least, created the present situation.
- In these circumstances, the claimant succeeds and the proceedings will be struck out as an abuse of process.
MR SOUTHEY: My Lord, I rise to raise two matters. Firstly, I rise to ask for assessment for public funding purposes.
MR JUSTICE SCOTT BAKER: Assuming the certificate is on file you can have that.
MR SOUTHEY: Yes, my Lord. Secondly, I rise to ask for leave to appeal in relation to this matter. Your Lordship's judgment raises, in my submission, important points of principle, not least of which is the fact that your Lordship has concluded that despite the fact that there is an arguable case that the appellant is entitled to some, albeit small, damages, the case should be struck out. My Lord, that compares, in my submission, with the cases in general one finds, and having spent some time reading recently, where one is talking about absolutely no benefit being identified. That, in my submission, is a matter of principle that will effect potentially a number of other cases, and it is a matter of some significance that the higher court ought to consider.
Secondly, my Lord, certainly as far as I am aware, the abuse type arguments have not been considered in the context of human rights, and although I put my argument in the way that I do in relation to human rights, and I do not resile from that, it still is a relevant factor. For both those reasons, my Lord, in my submission, this case does raise important points of principle.
MR JUSTICE SCOTT BAKER: Miss Grey, what do you say about this?
MISS GREY: My Lord, I would respectfully submit that that is a matter which could be left to the Court of Appeal to see whether they agree or not. Your Lordship has reached clear conclusions, and again one is looking at disproportionate litigation in this case. We are now looking at the prospect of going to the Court of Appeal over a very small point. If there are cases which raise similar arguments, there may be more at stake, they can take their own chances. In my respectful submission, you should refuse leave to appeal.
MR JUSTICE SCOTT BAKER: I am going to refuse leave. I think proportionality rules the day here on this particular issue.
MISS GREY: My Lord, that only leaves the matter of costs. We would respectfully ask for the usual legal aid order. My understanding is that if your Lordship now orders the claimant to pay the defendant's costs the costs protection automatically bites. It does not have to be recorded in the order, but in any event the transcript should record the defendant's intentions, we would ask for the usual order for the claimant to pay the defendant's costs, not to be enforced without order.
MR JUSTICE SCOTT BAKER: You cannot really object to that.
MR SOUTHEY: I cannot really object to that providing it is not enforced.
MR JUSTICE SCOTT BAKER: Yes, not to be enforced without further order.
