Case No: IHC 354/11
2007 Folio 942
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
and
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
The Hon Mr. Justice Mann
and
The Hon Mrs Justice Gloster, DBE
Between :
BEREZOVSKY | Claimant |
and | |
HINE & OTHERS | Defendants |
AND | |
BORIS ABRAMOVICH BEREZOVSKY | Claimant |
- and - | |
ROMAN ARKADIEVICH ABRAMOVICH | Defendant |
Laurence Rabinowitz Esq, QC, Richard Gillis Esq, QC and Roger Masefield Esq
(instructed by Addleshaw Goddard LLP) for the Claimant
(in the Commercial Court Proceedings and in the Chancery Proceedings)
Jonathan Sumption Esq, QC, Daniel Jowell Esq, QC and Richard Eschwege Esq
(instructed by Skadden Arps Slate Meagher & Flom) for the Defendant
(in the Commercial Court Proceedings)
Jonathan Adkin Esq (instructed by Hogan Lovells International LLP)
for the Family Defendants
(in the Chancery Proceedings)
Ali Malek Esq, QC, Miss Sonia Tolaney QC and Miss Anne Jeavons
(instructed by Freshfields Bruckhaus Deringer LLP) for the Anisimov Defendants
(in the Chancery Proceedings)
David Mumford Esq (instructed by Macfarlanes LLP) for the Salford Defendants
(in the Chancery Proceedings)
Hearing dates: 8th & 9th June 2011
Judgment
Mrs Justice Gloster:
This is a short judgment in relation to the application made on 16 May 2011 by the claimant, Mr. Boris Berezovsky (“Mr. Berezovsky”) in the Commercial Court proceedings (2007 Folio 942) (“the Abramovich Action”), for permission for each party to rely on the report of an expert in the field of contemporary Russian history, limited to the following areas:
“(1) The privatisation of Russian state-owned assets in the 1990s and the ‘loans for shares’ auctions;
(2) Business practice in Russia in the 1990s and early 2000s;
(3) The extent to which Mr. Berezovsky and the defendant (“Mr. Abramovich”) were able to exercise political influence
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ically be provided through books and articles, there are a number of practical advantages in such evidence being put forward through a qualified historian or economist, not least, the expediency of having an expert in the field summarise what he identifies as being the relevant material necessary for my determination of factual matters.
14. There is clearly precedent for historians, political scientists or economists being called to give expert evidence even in situations where witnesses of fact might, arguably, be called to give such evidence, or documentary evidence examined relating to the same subject-matter: see Law Debenture Trust Corporation v Ural Caspian Corporation Limited (unreported) [date?].
15. However, given my concerns (arising, in particular, from the articulation of the so-called “expert” issues in the document to which I have referred) that some areas which Mr. Berezovsky wishes Professor Fortescue to address may well not satisfy the relevant test for expert evidence, I do not consider it appropriate for me to give a definitive ruling until I have seen the actual evidence which Mr. Berezovsky proposes to adduce. For that reason I have directed that the liberty which I have given to Mr. Berezovsky to adduce an expert report is without prejudice to any arguments which any party might wish to raise subsequently as to its admissibility. If Mr. Abramovich or his legal advisors take the view that Professor Fortescue’s actual expert report is indeed objectionable, for the reasons submitted by Mr. Sumption in his oral submissions, or otherwise, they will have an opportunity at the beginning of the trial to oppose the introduction of the whole or any part of Professor Fortescue’s report. If the content of the report causes difficulty for Mr. Abramovich’s expert (in the sense of having to deal with any particular topic) in the meantime, pending a determination of admissibility, the court will entertain any application that may be made to defer service of Mr. Abramovich’s expert report in response.
16. I should also make it clear that I do not expect to see lengthy expert reports from either side. For obvious reasons, the court will be best assisted by a concise, succinct and well-structured expert report dealing with the relevant areas in a disciplined fashion.
17. For all the above reasons, I made the order in the terms which I did.
Neutral Citation Number: [2011] EWHC 1835 (Admin)
Case No: CO/5723/2010 CO/6227/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 13/07/2011
Before :
THE RT. HON. LORD JUSTICE LAWS
THE HON. MR. JUSTICE STADLEN
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Between :
Mr. Stephen BURGIN | 1st Claimant | |
Mr. Robert PURCELL | 2nd Claimant | |
and Commission of Police for the Metropolis Chief Constable for Leicestershire Police and Alstom UK Holdings Ltd The Director of the Serious Fraud Office | Defendants Interested Parties |
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Ms Clare Montgomery QC, Mr Alex Bailin QC and Ms Clare Sibson (instructed by BCL Burton Copeland) for the Claimants
Mr James Eadie QC and Mr Duncan Atkinson (instructed by Treasury Solicitors) for the First Defendant in CO/5723/2010 and the Second Interested Party in CO/6227/2010
Mr Jeremy Johnson QC (instructed by Director of Legal Services, Metropolitan Police and Weightmans LLP) for the Second and Third Interested Parties in CO/5723/2010 and the First and Second Defendants in CO/6227/2010
Hearing dates: 15th April 2011
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Judgment
The Hon. Mr. Justice Stadlen :
There are before the Court renewed applications for permission to proceed with claims for judicial review. They arise out of the same factual background. The Claimants in both applications are the same and some of the issues raised overlap. Accordingly they were heard together at one oral hearing, both applications having been dealt with on different dates on the papers by Mitting J.
In claim No. 5723 (“the search warrant claim”) the Claimants applied for permission to challenge a decision of the Serious Fraud Office (“the SFO”) to apply for and the City of Westminster Magistrates’ Court to issue search warrants. The SFO and the Magistrates Court are the Defendants in that claim and the Interested parties in it include the Commissioner of Police for the Metropolis and the Chief Constables of Leicestershire and Staffordshire Police, officers from whose police forces executed the warrants.
In Claim No. 6227 (“the arrest claim”) the Claimants challenge decisions of the Commissioner of Police for the Metropolis and the Chief Constable of Leicestershire Police, the Defendants in that Claim, to arrest them and the decision of the Commissioner of Police of the Metropolis to bail the first Claimant. The SFO is one of the interested parties in that claim.
Background
The SFO is currently conducting an investigation into suspected offences of bribery, corruption, false accounting and money laundering. The
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23 March 2010, for the reasons given above but having regard to the description of the second Claimant’s role within Network UK, as distinct from that of the first Claimant, in my judgment it is not arguable that he did not suspect that the second Claimant was guilty of the offences set out in the document or that he did not have reasonable grounds for that suspicion. Although in his statement DC Coggins made no reference to why he arrested the second Claimant beyond saying that he arrested him for bribery of an agent, conspiracy, paying bribes, money laundry and false accounting, it is in my view to be inferred from the briefing document which he received against the background circumstances to which I have referred both that he did suspect him of having committed the offences referred to in the briefing document and that there were reasonable grounds for that suspicion.
117. Accordingly in my view the challenge to the validity of the arrest warrants is not reasonably arguable.
Additional defences raised by the Commissioner and the Chief Constable
118. Additional defences were raised by the Commissioner of Police for the Metropolis and the Chief Constable of Leicestershire police which only required to be considered if it were held that the other challenges to the legality of the decision to issue the search warrants were sufficiently arguable to justify the grant of permission to seek judicial review. Since I have concluded that they are not it is not necessary to address those additional defences.
Conclusion
119. For the reasons given above in my judgment the challenges to the legality of the decisions to apply for and issue the search warrants in the search warrant claim and the challenge to the legality of the decisions to arrest the Claimants on the ground that there were no reasonable grounds to suspect them of having committed offences are not reasonably arguable and permission to pursue those challenges should be refused.
The Rt. Hon Lord Justice Laws:
I agree
Neutral Citation Number: [2011] EWHC 1824 (Admin)
Case No: 11043/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 13 July 2011
Before :
Mr Justice Collins
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Between :
R(U & Partners(East Anglia) Ltd) | Claimant | |
- and - | ||
The Broads Authority | Defendant | |
The Environment Agency | Interested Party |
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Mr Gregory Jones, Q.C. & Mr Ned Westaway (instructed by Steeles Law ) for the Claimant
Miss Lisa Busch (instructed by the Solicitor to the Environment Agency ) for the Interested Party
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Hearing dates: 5 & 6 July 2011
Judgment
Mr Justice Collins:
Flood protection for the 30,000 hectares of the Norfolk Broads has been a long standing problem. The Environment Agency (EA) was established by Section 1 of the Environment Act 1995 and from the coming into force of that Act on 28 July 1995 it became responsible for flood defences, a responsibility which had hitherto been carried by the National Rivers Authority. It was decided that there should be what was called a Broadland Flood Alleviation Strategy. This was reflected in the Broads Local Plan which was adopted in May 1997 following a public inquiry held in 1996. Policy INF5 sets out the framework which the defendant, the local planning authority for the Broads, will apply for assessing any application for planning permission in furtherance of the Strategy. It provides:-
“Policy INF5 Broadland flood alleviation strategy
In considering the Environment Agency’s proposed Broadland Flood Alleviation Strategy, the Broads Authority will seek to ensure that the following issues are fully incorporated:
minimising the risk to people and property, both in the defended and undefended areas;
adequate protection for the natural resources of the area, including the water
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graph 63 of his judgment. Miss Busch unsurprisingly did not feel able to put forward any submissions to the contrary.
45. I am far from persuaded that the Court’s decisions are satisfactory. It said that it had put before it arguments based on the importance of case law in the common law system. The judge’s discretion is not exercised arbitrarily and Finn-Kelcey makes the position clear. But the court seems to have thought that any possibility of the exercise of discretion by a judge contravened the principle of effectiveness. With hindsight, it is unfortunate that Laws J’s attempt to limit the time within which a claim should be brought so as not to fall foul of promptness to six weeks was disapproved by the House of Lords. Having regard to the importance of promptness in challenging grants of planning permission, serious consideration should in my view be given to amending CPR 54.5 so as to impose a six week limit for all such challenges.
46. Mr Jones argued that in any case to which the Directive 85/337 applied the Uniplex approach should prevail even if there was compliance with the Directive but a challenge was made on other grounds. That argument I reject. Apart from anything else, it would be contrary to the decision in Finn-Kelcey and to the provisions of CPR 54.5.
47. I would only add that the EA cannot rely on s.31(6) of the Senior Court Act 1981 since it only applies if there has been undue delay. If the claim was brought within the three month period which, following Uniplex, must be permitted, there is no undue delay.
48. I therefore cannot refuse permission on the ground that the claim was not brought promptly nor can I apply s.31(6) in the EA’s favour. Thus the planning permission must be quashed.
49. While it is of course for the defendant’s committee to decide the renewed application, it is entitled to regard as material that the decision to construct a new wall rather than strengthen the existing defences was made because of the claimant’s failure to answer correspondence and to allow the EA to enter its land. If, as I assume will happen, the EA makes the application it agreed to make in the letter of 28 September 2010, the committee will know that the claimant did not object to it. It will follow that there are no planning objections to it (assuming no other body changes its mind) and so the claimant’s alternative application (if made) will not need to be considered. And the committee will no doubt bear in mind that a substantial sum of public money has been spent on the works already lawfully and properly carried out by the EA in reliance on the permission of 28 July 2010. I would only add that it would be sensible for the EA to produce an EIA which should probably consider the effects of both Phases 1 and 2 to be entirely safe.