Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE WALKER
THE QUEEN ON THE APPLICATION OF KEITH JOSEPH SNEYD
(CLAIMANT)
-v-
DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT)
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MISS R J CALDER (instructed by MESSRS BYRNE FRODSHAM & CO) appeared on behalf of the CLAIMANT
MR J HOWARD (instructed by CPS ESSEX) appeared on behalf of the DEFENDANT
J U D G M E N T
MR JUSTICE WALKER: My draft judgment in this case, and accompanying directions, were faxed to counsel on 7 July 2005. The following day, the hearing for delivery of formal judgment was fixed for 9.30am today, 22nd July. In the interim however Miss Calder, who appears for the appellant, has in effect applied that there should be further oral argument on the substantive issues and asks that for this purpose the case should be listed before a two judge court.
Both sides agree that I have jurisdiction to withdraw my draft judgment on principles which are discussed at pages 1014 to 1016 of volume 1 of the 2005 edition of the White Book. That discussion, however, does not deal with the question of when matters should come before a two judge court.
An important submission of the appellant was that the justices ought to have found in his favour by applying the line of authority which starts with Owen v Chesters [1985] RTR 191. That of course was a two judge divisional court. My draft judgment concluded that this submission failed. I do not need to go into the reasons. It is sufficient to state that after consideration of the argument it seemed to me that that line of authority might not go as far as Miss Calder suggested.
On the question of whether the matter should be reargued before a two judge court, I have not been referred to any guidance. I have a discretion and I think a crucial question must be the general importance of the issue. The essential ground for seeking that the matter be reargued before a two judge court is that the case involves consideration of the Owen v Chesters line of authorities. It is an important line of authority, and the questions on it raised in this case seem to me to be important questions. Accordingly, I conclude that the matter does merit a divisional court.
I should add that if there had been an application to me that the case be adjourned to such a court, prior to oral argument on 26th April this year, I think it highly likely that I would have granted it. For whatever reason, and I do not need to go into the reasons, there was no such application and I did not give consideration to that question until it was raised by the appellant after receipt of my draft judgment.
Because the matter merits a divisional court, and for that reason alone, I withdraw my draft judgment. I did not canvass with counsel the authorities on withdrawal of a draft judgment in other circumstances, that is to say the circumstances dealt with at pages 1014 to 1016 of the White Book, and I do not need to canvass this.
As the point on Owen v Chesters was such a significant issue, I think the only course is to permit the appellant to reargue the entire case if he so chooses. He may conclude that other issues should be conceded, but that is a matter for him. I am told that Miss Calder appears in another case which raises the same issue. It will be open to Miss Calder to apply to the Administrative Court Office's Listing Officer on paper, if so advised, for that case to be heard with this. That would have to be done, of course, on notice to the respondent in both cases.
Subject to any further points that counsel wish to raise, I shall order, first, that this case should be reargued before a divisional court in the first half of next term, if possible. Secondly, that my draft judgment is withdrawn, it shall not be published and its contents shall not be referred to without the permission of the court. Third, that I should not be a member of the court hearing the case.
As to documents for the divisional court, I shall hear the submissions of counsel. I put forward for consideration that my fourth order today should be that material for that court is to compromise the bundle lodged by the appellant on 25th April 2005 along with; a) a skeleton argument which should replace that at page 17 of the bundle from the appellant, identifying the issues which the appellant wishes to argue and setting out the appellant's submissions on those issues; b) sequentially from the respondent a skeleton argument setting out the respondent's answers to the appellant's arguments; c) from the appellant, a skeleton argument in reply; d) thereafter, a jointly prepared supplemental bundle of authorities. This would mean that the parties start again with a clean slate. Both Mr Howard and Miss Calder are, it seems to me, free privately to consider whether to deploy, at the new hearing, any point made in my draft judgment. But if they decide to do so, then they must put it forward as their own point, and not refer to its origin.
Miss Calder, what do you say about my proposal as to the suggested orders, in particular the material to go before the divisional court, and what timescale do you suggest?
MISS CALDER: Well because it is the vacation, some time in September, do you think?
MR JUSTICE WALKER: Yes, there will not be a divisional court sitting until October. When in September do you think you could have your replacement skeleton argument ready?
MISS CALDER: Well perhaps the middle of September.
MR JUSTICE WALKER: Well, were you thinking perhaps of Monday 12th?
MISS CALDER: I do not have my diary with me, I think that sounds appropriate, yes.
MR JUSTICE WALKER: Very good. Then Mr Howard, as far as my proposed order is concerned, the next step would be a skeleton argument from you responding; will you be in chambers in September?
MR HOWARD: I shall be in chambers in September, however my Lord I do have a matter that is already in my diary which is in court that week and is a serious matter, that perhaps I will not be able to give as full a concentration on the skeleton argument in relation to this matter as perhaps I might.
MR JUSTICE WALKER: Suppose we were to give Miss Calder until Friday 16th September, how long would you need after that?
MR HOWARD: As I say, this matter would go beyond that, the matter I was talking about, that is expected to finish around 23rd September, so I would seek perhaps a week following on from that. Otherwise, I cannot see I would have any time at all.
MR JUSTICE WALKER: Friday 30th for your skeleton in answer. You can at least start considering it in the final week of your other matter, but you have a full week in which to prepare your submissions. Miss Calder, on the basis that you get the respondent's skeleton on 26th September, how long for your reply?
MISS CALDER: Two weeks.
MR JUSTICE WALKER: 16th September for Miss Calder, the Friday, then 30th of September for Mr Howard. So two weeks would take us to 14th October and then if we were to allow a further 7 days for the bundle, that would take us to 21st October. That would mean that it could not actually be heard by a divisional court in the first month effectively, the first four weeks of term, and I think that my first proposed order accordingly should read that this case should be reargued before a divisional court, not before 28 October 2005 but before the end of term, if possible.
The second order would be as I indicated earlier, that is to say my draft judgment is withdrawn, it shall not be published and its contents shall not be referred to without the permission of the court.
My third order remains the same and that is that I should not be a member of the court hearing the case. My fourth order is that the material for the divisional court is to comprise the bundle lodged by the appellant on 25th April 2005 along with (a) a skeleton argument from the appellant to replace that at page 17 of the bundle, identifying the issues which the appellant wishes to argue and setting out the appellant's submissions on those issues. It is to be filed with the court and served on the respondent by 16th September 2005, (b) a skeleton argument from the respondent setting out the respondent's answers to the appellant's arguments to be filed with the court and served on the appellant by Friday 30th September, (c) a skeleton argument in reply from the appellant to be filed with the court and served on the respondent by Friday 14th October and (d) a jointly prepared supplemental bundle of authorities to be filed with the court by 21st October. Are there any other directions the parties wish me to give?
MISS CALDER: My Lord, would it be necessary to have costs reserved?
MR JUSTICE WALKER: I shall order costs reserved, unless there is any objection to that.
MISS CALDER: My Lord, we are actually legally aided so I do not think that needs to be recorded or anything.
MR JUSTICE WALKER: No.
MISS CALDER: I think it is automatic anyway.
MR JUSTICE WALKER: I shall make an order for a detailed assessment of the appellant's publicly funded costs, if necessary.
MISS CALDER: Yes, I am obliged my Lord, thank you.