Clarke, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE GIBBS: Having heard useful and cogent arguments on both sides, both from Mr Wise on behalf of the claimant and Mr Kovacs on behalf of the defendant, I am concerned as to the best and most appropriate way to proceed with this claim for judicial review. The claim is brought with the permission of Richards J, and I understand that the Secretary of State conceded that it was a case where permission was appropriately granted. I am satisfied, on the basis of Mr Wise's submissions, that there are discreet and arguable public law issues which this court needs to deal with, and for that reason it is inappropriate, even if it were technically permissible, simply to transfer this action to the County Court.

On the other hand, having read the papers and heard the submissions of both counsel, it does seem to me to be a case in which the private law issues significantly overlap with, and potentially affect, the progress of the public law claim. More specifically, the private law claim, I am told, and I have seen the Particulars of Claim in at least one of the cases, alleges that the defendants were negligent in the treatment provided to remand other prisoners for their detoxification in the context of their heroin addiction. In particular, it is alleged that the defendants were negligent in failing to continue to prescribe methadone for the purposes of detoxification, in accordance with a similar regime to that which they had received in the community.

The defence to that claim has not been formulated in detail, but it amounts to saying that the alternative forms of treatment provided for the prisoners in question were adequate, not negligent, and, according to a respectable body of medical opinion, equally, if not more, effective than the methadone treatment.

It seems to me that when one considers the case of Mr Clarke, the present claimant, its resolution would be assisted by a determination of the expert and factual issues arising from the treatment he received when he entered prison. It also seems to me to be likely that the same applies to most, if not all, other claimants and potential claimants who are critical of the Secretary of State for the treatment which they have received in prison.

A dilemma is therefore presented to the court as to how best to proceed. The particular personal urgency of Mr Clarke's claim is now conceded to have disappeared. Indeed, Mr Clarke is now under the care of Dr Wright, a specialist medical practitioner in the field of detoxification. Ironically, Dr Wright himself has provided very substantial medical evidence in support of the defendant's case about the appropriateness of the treatment provided in prison.

My conclusion, having listened to the various arguments is this: that the issue, being an extremely important one to all individuals affected, and potentially affected, by the treatment received, should, if possible, be resolved by the courts in a consistent and authoritative fashion. It is an issue of some public importance. For that purpose, it seems to me to be highly desirable for the private law and public law issues arising in all relevant claims to be determined by the same judge in the course of the same or consolidated proceedings, or, at any rate, that they be managed and heard by the same judge. I cannot say at the moment whether such a course is practicable. I hope it can be arranged. I am told that the preparations for trial in the private court proceedings are at an early stage. There is a case management conference on 28th September, next month, before HHJ Grenfell, who has been assigned to try those private court proceedings. They are already described as a class action and there are many claimants. There is a trial window in April of next year, 2005, allocated for the trial of those private law proceedings, with a time estimate of three weeks.

As regards the present claimant in the public law proceedings, I am told that he is not alone. Mr Wise is already instructed on behalf of one other possible claimant and there are, I am told, several others awaiting the outcome of these proceedings.

I propose, therefore, to take such administrative steps as I can to notify HHJ Grenfell and the Leeds County Court of the situation that has arisen and to see whether the trial of the private law proceedings may be undertaken by a nominated Administrative Court judge who could, either at the same time or following those private law proceedings, resolve the public law issues. I propose to draft a memorandum of the situation which has arisen and to supply a copy of it to both counsel here and to see whether the steps that I have mentioned can practicably be taken. If I find that there are insuperable obstacles to that course being taken, it seems to me that the fallback position will be to relist the present claim for directions, I suggest immediately after the beginning of next term. If that does become necessary, I would expect and hope that counsel would be able to propose directions, preferably agreed, for the early hearing of this judicial review claim and any others which may be joined to it and have available directions, for example, as to the calling of any necessary evidence and as to the revised time estimate for the hearing. I will see that the outcome of my inquiries is notified to both sides as soon as possible.

MR KOVACS: My Lord, just as a housekeeping measure, could I formally ask that your Lordship give permission to the defence to hand up the evidence that I proposed this morning.

MR JUSTICE GIBBS: In the absence of any objection, yes.

MR WISE: For clarity, my Lord, your Lordship said that you are going to notify HHJ Grenfell to see how the matters can be joined together, and so forth. Does your Lordship propose that this matter be heard with the private law matters in Leeds, or the private law matter be heard with this matter in London, or did your Lordship not express a view?

MR JUSTICE GIBBS: I do not express a view at this stage about that. I think it will be difficult enough to arrange, without being unduly restrictive about the location.

MR WISE: Yes, certainly, that is a valid point, of course.

MR JUSTICE GIBBS: I am not excluding it being heard somewhere else, but London or Leeds are the two obvious places.

MR WISE: May I finally address your Lordship on costs?

MR JUSTICE GIBBS: Yes.

MR WISE: This application was made very late in the they. We received notice of it after six o'clock yesterday. It was open to the defendants to have made this point at the permission hearing or at any time since the granting of permission. As a result of the way in which the Secretary of State has proceeded, the claimant has wasted a considerable amount of time and effort, and clearly a great deal of expense, in preparing fully for a substantive hearing today, and I emphasise that we were fully prepared for today. That has gone off because of the defendant. In those circumstances, we say that they should bear our costs.

In anticipation of the defendant's position, which one would anticipate to be that the costs be reserved, we would say that this is different from the usual case where directions, adjournments, or so on, are given in a case such as this, for the reasons we have just said, the lateness and the full preparation that we have put in and, we would suggest, the lack of preparation which the Secretary of State has put in. That went in extremely late, their skeleton argument and so forth, and in those circumstances we say it is appropriate that the Secretary of State should bear the costs of this application, regardless of the final outcome of these proceedings.

MR JUSTICE GIBBS: The costs of this application or the costs of today?

MR WISE: I apologise, my Lord. The costs of today which, of course, would be the costs of preparation for the substantive judicial review hearing that we were fully prepared for. That has been costs thrown away, we would say, entirely due to the fault on the part of the defendant.

MR JUSTICE GIBBS: I see the force of your argument, but I suppose it could be said that, assuming, as I do, that this case is going to proceed for a judicial review hearing, either in tandem with private law proceedings or on its own, that the work has now been done which would have to be done in any event.

MR WISE: If the matter came back next April -- it seems more likely than not that it will be next year, in truth, but if it can be brought on sooner, we will obviously try, but all the preparation will have to be redone, my Lord, next year. I can say to your Lordship, candidly, that the best part of a week preparing this case -- you will see our skeleton and submissions and so forth -- has been entirely wasted. That is a burden that the Legal Services Commission should not, in our submission, have to bear. As a matter of fairness, they should not have to bear that costs. This, indeed, is an appropriate case, an unusual case, we accept, we accept it is unusual to get costs at this interlocutory stage, but this is such an unusual circumstance.

MR JUSTICE GIBBS: Mr Kovacs?

MR KOVACS: My Lord, four points. First, I accept that although I only learnt of the group action yesterday, the Treasury Solicitor was aware of it previously. In an ideal world, we would have issued this application earlier. I make that concession.

Secondly, however, the fact is, I submit, that an application has, in substance, been successful in that your Lordship has not heard the claim today but has indicated that it should be consolidated with, or heard by the same judge, preferably the same proceedings with the group action. So the application in has, in substance, been successful, so normally it is the losing party that bears the costs.

Thirdly, we submit that the preparation has not been wasted. Depending on how the directions turn out, it may be that some of the judicial review, if it is hived off, is heard earlier, but if it is not hived off and heard in consolidated proceedings, along with the group action, then the preparation will form part of the preparation to form that trial and that will not be wasted. It will just be part of learning curve for the larger proceedings. So we do not accept that there are costs thrown away.

Fourthly, a very tight timetable was initially put on these proceedings because it was felt that it was a very urgent case because of the withdrawal symptoms. That timetable fell initially because Dr Ross was slow in passing on his medical records to Dr Wright, and that knocked everything off and delays as a result of that. For example, we only got the trial bundle on Tuesday, that is two days ago. We do not accept for one moment that the Secretary of State is not ready to proceed today. That is an entirely unsupported assertion and we reject that entirely. So bearing in mind all those points, to a large extent we would say that they clearly cancel each other out. We won the application, though I accept the application was made late. Costs were not wasted and both parties failed to meet the timetable. I suggest that either the court make no order in relation to the costs for today's hearing, or alternatively, the order should be costs reserved. Well, costs reserved would be to pass the buck onto the other trial judge and that would not be fair, but we say either no order for costs or costs to the court. We submit that once we put the other side on notice of today's application, they could and should have agreed to it. Instead, they came to court and, in fighting it, they lost, and that ought to be apparent in your Lordship's order for costs.

MR WISE: A number of points, briefly, my Lord. My learned friend said he has been successful. His application was, of course, that this matter be transferred to the County Court to be joined in the private law proceedings. That application has not been successful. Your Lordship said that there are public law issues which are properly ventilated in the judicial review proceedings. It has been successful insofar as getting this case adjourned today, certainly if that was an objective, but it has not been successful in essentially knocking out the public law aspect of this case, which your Lordship will recall, from the submissions he made earlier today, was central to his case. He said it was a matter of clinical negligence. Your Lordship was against him on that. So, of course, it has not succeeded. Your Lordship has come to the pragmatic and understandable view that the public law and private law matters be heard together. That is a very different outcome from the outcome that the defendants actually sought in their application. That was his second point. His first point I do not understand the relevance of. The solicitors were aware of the group action.

MR JUSTICE GIBBS: I think his first point was a concession.

MR WISE: I am grateful for that. Preparation not wasted. Well, it is a matter of common sense, we would say, if a matter goes on for some months, it is obvious that the matter will need to be done again. The point about Dr Ross being slow. If you look at the order of Richards J, there is no order that engages Dr Ross. That has no bearing whatsoever on the failure of the defendants to meet the timetable that they agreed to, of course, on the last occasion, I think 20th July.

My learned friend finally says that we were put on notice of this application. We could have acceded to it and saved the hearing this morning. The notice was after six o'clock last evening. The matter was in the list, we had to turn up. Frankly, there was little to be gained by acceding in any event. In any event, we did not accede to the application in substance. So for all those reasons, my Lord, this is a case where a discrete costs order should be made, in our submission.

MR JUSTICE GIBBS: I think it is only fair that I should indicate to the parties that I propose to make an order that the defendant pay a part of the claimant's costs thrown away for today. It is not something I have canvassed with counsel, but if either of you wish to say anything further in that connection, please do.

MR KOVACS: Just very briefly. I hope it is not being too petty. The reason that the order made by Richards J did not mention Dr Ross making a note was that Mr Wise and I discussed it in court. It was done on good will. We were both well aware that Dr Wright needed Dr Ross's medical notes. Dr Wright was in court and he said why he did.

Secondly, to say that they were put on notice at six o'clock last night is not entirely fair. I rang Mr Wise at lunch time and put him on notice of the application, and told him of the existence of the group action.

MR JUSTICE GIBBS: Anything further, Mr Wise?

MR WISE: Any undertaking we could have given on behalf of Dr Ross was subject to -- Dr Ross was not at court on the occasion and if there were difficulties, clearly he cannot take the blame for that, but that is not part of it, in any event. Whatever time I was notified of the application, it was still too late to do anything about it. I forget the exact time, but my learned friend did ring me at chambers yesterday, some time in the afternoon, as I recall.

So far as the partial costs order is concerned, my Lord, on analysis, and one assumes this is the rationale for your Lordship approaching it in this case, some of the preparation will be of utility in the restored hearing and the exercise that one has to go through is to try to apportion the relevant proportion of the preparation that has not been wasted.

MR JUSTICE GIBBS: That is an important factor. The other important factor is that essentially this case has taken a course which is partly dictated by events, namely what has happened to the claimant very recently, his recovery, if that is the right word, and the assumption of his care by Dr Wright. That is one point, and the other point is that really neither side has got exactly what they came here for, and plus, as you say, the fact that some of the preparation will be of utility. It is a combination of those factors that leads me to take a broad brush approach. Whilst accepting your submission about the lateness of the defendant's approach, to make an assessment of costs which I feel to be in course with the justice of the case.

MR WISE: It is always difficult to estimate what is just in the case in circumstances such as this. We would say 75 percent would be the appropriate percentage. We say that for this reason: that in reality all the preparation will have to be redone if the matter goes off for a couple of months or so. A new bundle will inevitably have to be prepared. It will inevitably have to be marked up and there will be inevitably be further evidence submitted. That is just a matter of fact. But taking into account your Lordship's other points and looking at the broad brush approach that we were not entirely successful, one concedes that, nor was my learned friend, one reduces from the 100 percent to an appropriate proportion. In our submission, 75 percent is an appropriate proportion, especially bearing in mind, and importantly bearing in mind, as my learned friend conceded, the Treasury Solicitors were aware of the group action from the outset and could have made this application three weeks ago, for all the work was done on preparing for today's hearing. So in those circumstances, we would say 75 percent would be appropriate.

MR KOVACS: My Lord, predictably, if he says 75 percent, I would say 25 percent.

MR JUSTICE GIBBS: I had 50 in mind.

MR KOVACS: Even if we had given notice earlier, it is clear from what Mr Wise is saying, he would have opposed it. On a rough and ready basis, he identified four issues, only one of which was remotely successful.

MR WISE: My Lord, if I can just come back on that. On the late notice point, of course what would normally happen if an application notice had been filed and served a few weeks ago, that would have been dealt with as a discrete issue. There would not have been the necessity for the full preparation. We would have only been dealing with that point.

MR JUSTICE GIBBS: Yes, I take that point.

For the reasons given in the indications that I made in argument, I think that the defendant should pay 50 percent of the claimant's costs of this hearing. I do think that a significant amount of the preparation done for this hearing will not be wasted. The outcome of today's hearing has not been entirely successful for either party. In any case, the course of today's hearing has been dictated by external matters, such as what has become of Mr Clarke and the urgency or otherwise of his situation. However, I think the Secretary of State ought to bear 50 percent of the costs because it has been known to him, through the Treasury Solicitors, that there has been a class action in Leeds and if a discrete application had been made some time ago, then the necessity to prepare for this judicial review hearing today would have been avoided.

Thank you very much. I will supply the memorandum and direct that you be kept informed as much as possible. I personally will be on vacation from the end of this week until the end of September, but I shall do my best to contact HHJ Grenfell and alert the Administrative Court and the Leeds County Court to the situation.

MR WISE: Finally, my Lord, just before you rise, may I have a detailed assessment of the publicly funded costs.

MR JUSTICE GIBBS: Yes.