Royal Courts of Justice
Before:
MR JUSTICE SUPPERSTONE
B E T W E E N :
(1) CORBIERE LIMITED
(2) TRENCHANT LIMITED
(3) TRENCHANT EMPLOYEE SERVICES LIMITED Claimants
- and -
(1) SECRETARY OF STATE FOR JUSTICE
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT Defendants
- and -
KE XU Interested Party
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This transcript has been approved by the Judge
MR M FORDHAM QC and MR J LEWIS QC (instructed by Allen and Overy) appeared on behalf of the Claimant.
MR A PAYNE (instructed by the Government Legal Department) appeared on behalf of the Defendant.
MR R HALIM appeared on behalf of the Interested Party.
J U D G M E N T
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MR JUSTICE SUPPERSTONE:
I shall refer to the claimants collectively as the claimant. At this hearing the claimant asks the court to fix a timetable for an expedited rolled up hearing and to order a stay on the deportation of Mr Xu, a Chinese national who came to the United Kingdom and worked for the claimant, until that hearing or further order.
Between March and August 2014 Mr Xu dishonestly removed 55 highly confidential strategies, the claimant's intellectual property, with the intention of using them overseas. He then fled the United Kingdom for China but en route through the actions of the claimant he was arrested and extradited to the United Kingdom.
On 3rd July 2015 at Southwark Crown Court he was sentenced to four years' imprisonment to run with supervision after release on licence to 14th August 2018, and the court made a serious crime prevention order (SCPO). The damage to the claimant's business, and it is said value to Mr Xu, was assessed as being in excess of £31m. Between July and September 2015 in breach of the SCPO, Mr Xu concealed information about what had happened to the strategies which he had removed from the claimant. This led to a further trial at Southwark Crown Court in November/December 2016 by way of private prosecution brought by the claimant which resulted in sentences of further terms of imprisonment of 18 months concurrent. The custodial term of the four-year sentence of imprisonment was due to expire on or about 14th August 2016. On that date Mr Xu was issued with a licence which contained the relevant terms so far as his licence period was concerned. That licence was subsequently amended and re-issued on 19th August 2016. The licence conditions included “to be of good behaviour and not behave in a way which undermines the purpose of the licence period”, and “not commit any offence”.
It is the claimant's case that in giving evidence in November/December 2016 he deliberately misled the court, committed perjury, and defied the direction of the court. By letter dated 6th February 2017 the claimant requested that he immediately be recalled. The first defendant refused on 7th March to recall Mr Xu to serve the remainder of his initial four-year term.
In these proceedings, the claimant challenges that decision and the subsequent decision taken by the second defendant to deport Mr Xu, it being the claimant's case that no deportation before 14th August 2018 at the earliest would be lawful. The second defendant, appearing by Mr Alan Payne, opposes the applications for an expedited hearing and for a stay on the deportation. Mr Michael Fordham QC, for the claimant, points out that when the second defendant filed her acknowledgement of service she argued the resolution of this claim of challenging deportation action, at that stage prospectively, was premature, and advocated a stay “with appropriate directions for the onward progress of this claim”. Now Mr Fordham says the second defendant wants to deport Mr Xu immediately, leaving the judicial review, in the words in the Secretary of State's response, “to take its normal course” and thereby become “academic”.
I consider that this claim does raise serious issues to be tried relating to the timing of deportation, having regard to the public interests in play in this case. Further, if the first defendant erred in her non-recall decision then Mr Fordham submits no lawful decision has been taken as to whether Mr Xu should serve the rest of his original four-year sentence of imprisonment.
I am also satisfied that the balance of convenience favours the grant of interim relief. It is at least arguable that the imposition of the further SCPO in 2017 reflects the judge's assessment that there is a real and significant risk of serious crime, with the claimant as the victim, if Mr Xu is allowed to leave the United Kingdom at the present time. The second defendant accepts that it is in the public interest that third parties in the United Kingdom have a legitimate interest in being protected against the risk of criminal conduct at the hands of a putative deportee. Of course that public interest has to be balanced against the public interest in favour of deportation of a criminal.
The timetable for an expedited rolled up hearing that Mr Fordham proposes is set out at paragraph 10 of his skeleton argument. I have made enquiries of listing and I am informed that a hearing can be accommodated in accordance with that timetable.
Having regard to all the circumstances to which I have referred, I am satisfied that a stay for a relatively short period of time is warranted. Mr Fordham, can we just look again at paragraph 10 in your proposed timetable.
MR FORDHAM: We can perhaps do a little better because if you turn to page 10, my Lord, there is a draft order which everyone has seen. It reflects those bullet points but does it properly as an order.
MR JUSTICE SUPPERSTONE: Yes.
MR FORDHAM: What you would be invited to do is delete the word "draft", delete the square brackets in paragraph 1, delete the square brackets in paragraph 2 because no one has said it should be an injunction rather than a stay.
MR JUSTICE SUPPERSTONE: Yes.
MR FORDHAM: Then the only questions were whether anyone wanted to say anything about dates - which nobody has, but there is a liberty to apply anyway in paragraph 10.
MR JUSTICE SUPPERSTONE: Yes, but I will most certainly give anyone an opportunity to say anything that they wish.
MR FORDHAM: And then just to draw attention to it, I had specifically included two options at paragraph 8 as to whether skeletons are going to be helpful to add to what the court has and to possibly navigate what the court has, or whether grounds should stand as skeletons. I can give you my own personal preference.
MR JUSTICE SUPPERSTONE: Yes, you say.
MR FORDHAM: I would rather have skeletons because once all the material is in, it can be very helpful to just chart the way through.
MR JUSTICE SUPPERSTONE: I am in total agreement.
MR FORDHAM: In that case, my Lord, I will be inviting you to delete the first sentence of paragraph 8 and delete the square brackets and the word "alternatively" so that it reads: "Skeleton arguments to be filed."
MR JUSTICE SUPPERSTONE: Yes.
MR FORDHAM: And I emphasise if there is any sticking point either resolve it today or we can agree it. But that is the order I am inviting you to make.
MR JUSTICE SUPPERSTONE: Thank you. Mr Payne.
MR PAYNE: My Lord, the only issue that I would ask and hope can be agreed is in terms of availability. Clearly my clients do not want to have to change counsel.
MR JUSTICE SUPPERSTONE: No, certainly. Can I suggest that you contact listing tomorrow. I will speak to listing, and I agree that if the same counsel can appear obviously that has great merit. My understanding is that you can be accommodated fairly easily within those dates, so I do not see why in those circumstances you should not find dates that are convenient for all of you.
MR PAYNE: I am not available for that period but I am in the first two weeks in November, so it is literally just moving it.
MR JUSTICE SUPPERSTONE: Well, I was saying within the period suggested, which was by the end of October. But if, on the other hand, you as counsel for the Secretary of State are happy with the first two weeks of November and Mr Fordham can make that time, then I see no objection to that whatsoever. Can I just leave it to the parties to discuss. You can do it outside court.
MR FORDHAM: I have a public engagement. I am sitting in the High Court myself the week of the 6th, but we can perhaps talk outside.
MR JUSTICE SUPPERSTONE: Have a word. If there are any problems and I can assist, then let me know.
MR FORDHAM: We can use the liberty to apply and agree it.
MR JUSTICE SUPPERSTONE: Thank you all very much. If I could have a clean copy of the proposed order that would very helpful.
MR FORDHAM: Certainly, my Lord. We will do that and get it on email to your clerk and copy everybody in.
MR JUSTICE SUPPERSTONE: Thank you.
MR FORDHAM: My Lord, I have an application for costs. It is on the basis that we wrote on 31st July, it is bundle 3 page 1329. We have set out the envisaged expedited timetable and all we wanted was confirmation that there would be no deportation pending that expedited judicial review. In the circumstances, we say the costs really should follow the event, and if anything all of this is reinforced by the fact that we said what we said at the outset of this case. But the Secretary of State - and I want my costs against the second defendant because that is the reason that we are here today - the Secretary of State decided to resist and she has failed. It really is as simple as that. And it would be unjust, in our submission, if in those circumstances she got away with that without paying the costs.
MR JUSTICE SUPPERSTONE: Mr Payne, in principle?
MR PAYNE: My Lord, in principle the decision that I have taken and have to prove, is really that the deportation is in the public interest. The court has not yet decided whether that decision is lawful. If it is lawful, then the Secretary was perfectly correct today to oppose the application. This is a case clearly of costs in the case.
MR JUSTICE SUPPERSTONE: Mr Fordham.
MR FORDHAM: I think that is incorrect because she has chosen to resist. We have had to have a hearing and we have succeeded. It is completely unnecessary and costs have been incurred as a result. She could have given an undertaking. It was a very short period of time. We say with respect it was very straight forward. It is quite important to give the signal that it is not a free ride for the Secretary of State if somebody puts forward a sensible proposal and she chooses not to accede to it.
MR JUSTICE SUPPERSTONE: Yes.
MR PAYNE: My Lord, can I just make one point. The Secretary of State has also a public duty to act as she sees fit although things may well turn out be expedited in terms of immediate period, the overall delay is likely to be quite significant because the judgment will have to be written and then there will almost inevitably be an appeal when you look at the way this case has been conducted. The Secretary is perfectly entitled to reach the decision that she did and to say deportation ought to proceed immediately. If that decision is unlawful, fair enough, the Secretary will pay the costs, but otherwise costs in the case.
MR JUSTICE SUPPERSTONE: Thank you very much. I will say costs in the case.