PP v The Home Office & Anor

This is a claim alleging (1) failure to make reasonable enquiries as to whether the Claimant was a victim of trafficking, in breach of the investigative duty imposed by Art 4 ECHR, contrary to s6, Human Rights Act 1998 (‘HRA’), and (2) unlawful detention (false imprisonment and/or violation of Art 5 ECHR) as a consequence of alleged errors of law relating to the identification of the claimant as a victim of trafficking.

I have to determine three preliminary issues, the trial of which was ordered by Master Eastman at a directions hearing on 15 November 2016. They are as follows:

The Claimant came to the UK from Sri Lanka in 2009 on a 6 month domestic worker visa, sponsored by a woman to whom I shall refer as R, by whom she was employed in London. It is her case that she was brought to the UK for the purpose of exploitation through forced labour and/or domestic servitude, by means of deception, abuse of power and/or abuse of her vulnerability.

She overstayed and was arrested by the Metropolitan Police on 18 June 2013 for attempting to buy international phone cards with counterfeit money. She was then arrested for immigration offences, and was interviewed by the Defendants on 19 June 2013. She claims to have told the immigration officer how she was treated by R and R’s family.

Her case is that the Defendants knew or ought to have known a number of pieces of information about the circumstances in which she lived and worked in the UK, which are said to have amounted to objective indicators that the Claimant was a victim of trafficking. In those circumstances, it is said that the Defendants came under a duty to take reasonable steps to investigate whether the individual is a victim of trafficking.

That duty is said to arise from s6 HRA and Art 4 ECHR and from a common law duty on the Defendants to follow their own policy and guidance for the investigation of potential trafficking. It is said to be an investigative duty to undertake such inquiries as are reasonable in all the circumstances.

The Claimant’s pleaded case is that the investigative duty was breached on 19 June 2013, in that the Defendants took no or no adequate steps to investigate whether the Claimant might be a victim of trafficking. She argues that if they had investigated, she would have been spared a further period of servitude from 19 June 2013 to 17 February 2014, when she was finally referred to the National Referral Mechanism (NRM) for investigation and placed in a safe house, and she would have not have suffered two periods of detention (from 25 July to 5 August 2014 and from 19 to 26 June 2015).

On 20 February 2014 the Home Office (the competent authority under the NRM) made a positive reasonable grounds decision, ie a decision that there were reasonable grounds to believe that the Claimant might be a victim of trafficking.

However, on 27 June 2014 the Home Office made a negative conclusive grounds decision, ie a decision that the Claimant was not, on the balance of probabilities, a victim of trafficking. There was no appeal against that determination, although it could have been challenged by way of judicial review. That decision is alleged by the Claimant to have been flawed by a number of public law errors.

The Claimant was arrested on 25 July 2014 pursuant to the Secretary of State’s powers under the Immigration Acts with a view to her removal from the UK, and detained until 5 August 2014. She was again detained with a view to her removal from 19 June to 26 June 2015.

These proceedings were issued on 1 June 2015, almost a year after the conclusive grounds decision, and almost two years after 19 June 2013.

On 22 June 2015, the Home Office refused to reconsider the conclusive grounds decision. The Claimant alleges that its failure was erroneous. On 23 June the Claimant issued a claim for judicial review of the refusal to reconsider.

On 30 July 2015, the Home Office decided on the balance of probabilities that the Claimant was a victim of trafficking.

The Claimant does not challenge the decisions to detain her. Her case is that the two allegedly erroneous decisions (of 27 June 2014 and 22 June 2015) were relevant to the decisions to detain her on 25 July 2014 and 19 June 2015, because it is the Defendants’ policy not to detain individuals in respect of whom a positive reasonable grounds decision has been made, and the negative conclusive grounds decision of 27 June 2014 displaced the earlier reasonable grounds decision. In other words, without the allegedly erroneous decisions she would not have been detained, or have been kept in detention. She was therefore detained unlawfully, and claims damages for false imprisonment and/or breach of Art 5 ECHR.

The Defendants contend that it is an abuse of process for the Claimant to challenge the lawfulness of the 27 June 2014 conclusive grounds decision in these proceedings. Had she wished to challenge that decision she should have made a timeous application for judicial review, ie an application made within 3 months. She was legally represented but failed to make such an application.

The Defendants do not, however, apply the same argument to the challenge in these proceedings to the alleged failure to consider further representations on 22 June 2015. That is because the Claimant did seek to challenge the lawfulness of that alleged failure by way of judicial review, but the challenge fell away because the Secretary of State reconsidered.

For the Defendants, Mr Anderson contends that there is a public interest in the finality of administrative decisions, which remain valid until quashed, and on which subsequent decision makers should be able to rely. The lawfulness of administrative decisions should be challenged, if at all, by the judicial review procedure, which requires prompt application and in any event application within three months of the decision challenged. The Claimant’s challenge in this case breaches the rule of procedural exclusivity and is an abuse of process. Mr Buttler, for the Claimant, submits that the rule of procedural exclusivity has been swept away by the Supreme Court decision in R (Lumba) v SSHD [2012] 2 AC 245, which he describes as transformative.

Before the advent of the CPR, the procedural exclusivity rule was firm. In O’Reilly v Mackman [1983] 2 AC 237, the House of Lords held that challenges to decisions made by public authorities must normally be made by way of judicial review. At p280h-281a Lord Diplock referred to the requirement of the public interest in good administration that public authorities and third parties should not be kept in suspense as to the legal validity of a decision reached in purported exercise of decision-making powers for any longer than absolutely necessary. At p285e-f, he expressed the procedural exclusivity rule in these terms:

“Now that …. all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of (RSC) Order 53 for the protection of such authorities.”

Similarly, in Cocks v Thanet DC [1983] 2 AC 286 the House of Lords held (on the same day and in the same constitution as O’Reilly v Mackman) that the same general rule applies where the decision which the litigant seeks to overturn is not one alleged to infringe any existing right, but one which prevents him from establishing a condition precedent to a private law right. So a private law claim which depends on a challenge to the lawfulness of a public law decision should be brought by way of judicial review.

Cocks, as Mr Anderson frankly admits, was the high water mark of the procedural exclusivity rule. It has subsequently been relaxed, partly as a product of the greater procedural flexibility brought in by the CPR, but not, he submits, so far as to legitimise the approach adopted by the Claimant in this case.

Exceptions to the general rule stated in Cocks were found in Wandsworth LBC v Winder [1985] AC 461 (where a challenge to a local authority’s decision to increase rents was permitted by way of defence of a claim for arrears of rent and possession) and Roy v Kensington & Chelsea FPC [1992] 1 AC 624 (in which it was held not to be an abuse of process for a GP to elect to sue to recover statutory payments due to him where the public law element – a decision by the FPC as to the quantum of payments to which he was entitled - was incidental and not dominant).

I was also referred to Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, in which a claim for breach of contract was brought against a university which the university (a statutory body with public functions) argued should have proceeded by way of judicial review. The claimant’s position was a fortiori of Roy, for whereas in Roy a statutory relationship happened to include a contractual element, Miss Clark had a contractual relationship with the university which happened to have a public law dimension. The strike out argument failed on the facts, but the Court of Appeal suggested that the introduction of the CPR had produced a new flexibility, such that the mode of commencement of proceedings was less important than whether the choice of procedure was critical to the outcome. That focussed attention on the most critical distinction between judicial review and civil suit, namely the very different time limits. While to allow what was in substance a public law challenge to be brought as of right many years later might circumvent the safeguards of RSC O.53, the CPR allowed the court to prevent the unfair exploitation of the longer limitation period without resorting to a rigid exclusionary rule. Sedley LJ explained at [17] that

“Just as on a judicial review application the court may enlarge time if justice so requires, in a civil suit it may now intervene, notwithstanding the currency of the limitation period, if the entirety of circumstances – including of course the availability of judicial review – demonstrates that the court’s processes are being misused, or if it is clear that because of the lapse of time or other circumstances no worthwhile relief can be expected.”

Lord Woolf MR stated ([38]-[39]) that the emphasis had changed since O’Reilly v Mackman. The court might strike out a claim which could more appropriately be made under RSC O.53 (now CPR Pt 54) if it came to the conclusion that in all the circumstances, including the delay in initiating the proceedings, there had been an abuse of the process of the court. What was likely to be important was not whether the right procedure had been adopted but whether the protections afforded by RSC O.53 (now CPR Pt 54) had been flouted in circumstances which were inconsistent with proceedings being able to be conducted justly in accordance with the overriding objective.

Mr Anderson referred to two cases where false imprisonment was in issue – Shingara v SSHD [1999] INLR 99 and D v Home Office [2005] EWCA Civ 38.

In Shingara, the Secretary of State directed in 1991 that S should not be allowed to enter the UK. Rather than apply for judicial review of that decision, S entered the country in 1993 and was arrested, detained and declared an illegal entrant. He was granted leave to apply for judicial review of the decision to treat him as an illegal entrant. Following a reference to the European Court of Justice on a point concerning rights under Arts 8 and 9 of EU Directive 64/221, his application for judicial review was dismissed together with a claim for damages for false imprisonment. Brooke LJ held that the 1991 direction had remained valid, but that even if it had lost its legal validity by reason of any failure to comply with the Directive, it continued to be operative unless and until it was set aside by a court ‘granting a remedy to the right person in the right proceedings and in the right circumstances’. It bore no ‘brand of invalidity upon its forehead’, and the immigration officer had been entitled to rely on it for his finding that S was an illegal entrant. In support of his contention that he was entitled to mount a collateral challenge to the validity of the 1991 direction in order to make good his claim for false imprisonment, S relied on Boddington v British Transport Police [1998] 2 WLR 639, where it was held that the O’Reilly v Mackman rules of procedural exclusivity did not preclude the possibility of a collateral defensive challenge to the validity of a by-law. Brooke LJ’s response was as follows:

“This appears to me to be an entirely different situation from the present, where Mr Shingara has no private law right to claim damages for false imprisonment unless he can show that the public law decision by which his liberty was curtailed was unlawfully made. In order to do this he must, in my judgment, challenge that decision directly in proceedings brought for that purpose, and it is now far too late for him to do so.”

Similarly, in the present case the Claimant has no private law right to claim damages for false imprisonment unless she can show that the public law decisions of 27 June 2014 and/or 22 June 2015 were unlawfully made. She does not challenge the lawfulness of the detention decisions themselves.

D v Home Office was a case brought in the County Court by a woman who arrived in the UK with her family, was detained and claimed asylum. Her claim for asylum was refused and she was refused leave to enter. There was an appeal to an adjudicator, and she was granted temporary admission. She claimed a declaration that her ECHR rights had been breached in a number of respects, together with damages for negligence and false imprisonment. The Home Office applied to strike out the claim on the basis that the claimants had been detained in accordance with statutory powers and the County Court proceedings were an abuse of process for their circumventing of the judicial review regime. Brooke LJ took a different position on procedural exclusivity from that which he had taken in Shingara. He regarded the abuse of process argument as a complaint about the choice of initiating process, and expressed the hope that complaints about procedural exclusivity would fall away under the CPR, for the reasons stated by Lord Woolf in Clark, in particular that the relevant question was not whether the right procedure had been adopted, but whether the protection provided by the then RSC O.53 had been flouted in such a way that the proceedings could not be justly conducted. The case was properly brought as a private law claim, not least because the Administrative Court had no jurisdiction to hear a claim for damages alone. Shingara did not assist, that having been a ‘second actor’ case where it was too late to challenge the lawfulness of a much earlier decision, and not a case where damages were claimed for detention that occurred at the time of the impugned direction.

It appears, then, that a distinction should be made between the kind of case (D v Home Office) where the decision challenged is part of, or proximate to, the decision-making process that results in detention, and the kind of case (eg Shingara) where the challenge is to an anterior decision which provided the authority for a later detention. This case falls into the latter category. In such cases, Mr Anderson submits, the public interest in the finality of administrative decisions requires compliance with the procedural safeguards of the judicial review process.

The question arises as to whether that distinction still holds good, or whether (as Mr Buttler argues) the landscape has been transformed by the decision of the nine-judge Supreme Court in R (Lumba) v SSHD [2012] 2 AC 245, which concerned the true nature of the tort of false imprisonment, and the impact of breach of public law duty on the lawfulness of detention.

In Lumba, both claimants were convicted foreign nationals who were detained pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending the making of deportation orders against them. Deportation orders were duly made, and they were detained pursuant to paragraph 2(3) of Schedule 3 pending their removal. They brought proceedings for judicial review, claiming that they had been unlawfully detained during a period in which the Secretary of State had applied an unpublished policy of blanket detention for foreign national prisoners, inconsistent with the published policy, on completion of their sentences. They also sought damages for false imprisonment. The case restates the law on the elements of false imprisonment.

In both the Court of Appeal and the Supreme Court it was held that the unpublished policy had been unlawful because it was a blanket policy admitting of no exceptions, and was inconsistent with the published policy. However, the Court of Appeal had accepted the argument of the Secretary of State that the unlawful policy had been of no causative effect because the claimant would have been detained lawfully if the published policy had been applied. The unpublished policy had not been the material cause of the detention.

The propriety of that causation test fell to be decided by the Supreme Court. The majority concluded that there was no place for the causation test, since in false imprisonment the claimant had to prove only that he had been directly and intentionally imprisoned, upon which the burden shifted to the defendant to show that there was lawful justification for the detention. The power had to be lawfully exercised, and it was no defence to show that a lawful decision could and would have been made. The causation test shifted the focus onto a different question, namely how the defendant would have acted had she directed herself lawfully, instead of on the claimant’s right not in fact to be unlawfully detained. It made no difference whether a detention was unlawful because there was no statutory power to detain, or because although there was a power, the decision was made in breach of a rule of public law. However, not every breach of public law would suffice to found a claim in false imprisonment: the breach had to bear on and be relevant to the decision to detain.

Mr Buttler relied on Lord Dyson’s answers to the arguments advanced by Mr Beloff QC for the Secretary of State in favour of the causation test. Mr Beloff argued that there were inherent problems with Lord Dyson’s preferred answer to the causation issue. One was that it failed to take account of the nature or extent of the public law error, which might be trivial. His second and third points were that it allowed what was in essence a public law challenge to be made under the guise of a private law action, without any of the procedural safeguards which applied to judicial review proceedings; and that judicial review was a discretionary remedy, so that while a minor public law error might result in no substantive relief at all being granted in judicial review proceedings, the claimant could bring private law proceedings for false imprisonment as of right.

Lord Dyson did not accept that any of these points undermined his preferred approach to the causation issue. On the first point, the error had to be material in public law terms, so as to bear on and be relevant to the decision to detain; and as to the other points, the fact that detention was vitiated by a public law error could not be affected by the fact that it was also possible to challenge the decision by way of judicial review, or by the fact that judicial review was a discretionary remedy. In that context, Lord Dyson observed that it was well established that a defendant could rely on a public law error as a defence to civil proceedings, and that it was difficult to see how or why there should be any sensible distinction between on the one hand relying on a public law error as a defence and, on the other, using it to found a private law cause of action.

According to Mr Buttler, Lumba leaves intact the principle that a public law decision is valid until declared otherwise, but is authority for the proposition that the legality of a public law decision which bears on a decision to detain is reviewable in a claim for false imprisonment. He maintains that Lumba is an anterior decision case and that the case overrules the decision in Shingara that a collateral challenge to a public law decision in false imprisonment proceedings is (or may be) an abuse of process.

Mr Anderson submits that this is to draw a much wider principle than the case will bear. There is a distinction to be drawn, he argues, between Lumba, where there was an unlawful policy which the claimant had an interest in challenging when it was applied to him, and this case, where what is in issue is an entirely separate anterior decision in which (as in Shingara and Draga v SSHD [2012] EWCA Civ 842) the decision maker was not addressing his mind to the question of detention at all. If Mr Buttler were right, he submits, a person who applied for leave to remain but received an adverse decision, could simply go to ground and wait to see if the Secretary of State took any steps to remove him, and then, if detained, seek to challenge the lawfulness of the decision that he was not entitled to remain. Although he did not say that the claimant in this case was employing that tactic, the same argument for certainty applied.

I agree with Mr Anderson on the effect of Lumba. The judgments in the case are complex, and there are differences of approach even in the judgments of the majority. But the ratio of the majority’s decision on the propriety of the causation test was that there must be a lawfully exercised power to detain, and it was irrelevant that the power could have been lawfully exercised if in fact it was not. The court were not addressing their minds to the question of abuse of process. I cannot accept Mr Buttler’s contention that the ratio was that any public law error, as long as relevant to and bearing on the decision to detain, founds a private law action for false imprisonment, or that the decision overturns the principle stated in Shingara. Shingara was not even cited. Nor can I see that Draga assists him. In that case, which was an appeal from a decision by way of judicial review, an ultra vires statutory instrument was relied on as the basis of a decision to deem that the applicant’s deportation was conducive to the public good, and a decision to make a deportation order against him. The question which the court found hard to answer (see [58]) was whether the error of law in those decisions bore upon or was relevant to (in Lord Dyson’s words) the decision to detain, so as to vitiate that also. It does not appear to me that it had any bearing on the question of whether it may be an abuse of process to rely on public law errors in private law claims for false imprisonment.

All that said, Lord Dyson’s answers to Mr Beloff’s arguments do seem to endorse, if only obiter, a more flexible approach to procedural exclusivity, in keeping with the advent of the CPR and decisions such as Clark.

In the present case, the challenge is made to an anterior decision, without which, the claimant contends, the decision to detain (not itself challenged) would not have been made. Shingara suggests that the decision should in principle have been challenged by judicial review at the time. But does it follow that the claim should be struck out in so far as it relies on the decision of 27 June 2014?

As I understood him, Mr Anderson relied on the proposition that the Shingara line of authority, untouched in this respect by Lumba, obliged the claimant to proceed by way of judicial review, and that the issue of private law proceedings to challenge the 27 June 2014 decision, sidestepping the protections afforded by CPR Pt54, was ipso facto abusive.

I doubt that this can be right. It suggests a rigidity of approach which is not generally consistent with the advent of the CPR. The decision of the Court of Appeal in Clark v University of Lincolnshire and Humberside suggests a more holistic approach. It seems to me that since the CPR came in, the decision must depend on whether in all the circumstances, including the delay in initiating the proceedings, there has been an abuse of the process of the court. Have the protections afforded by CPR Pt 54 been flouted in a way inconsistent with proceedings being able to be conducted justly in accordance with the overriding objective? That was the question posed by Lord Woolf CJ. The editors of De Smith’s Judicial Review, 7^th edition, suggest at 3-104 that what matters under the CPR regime is not the mode of commencement of proceedings but whether the choice of procedure may have a material effect on the outcome. ‘To prove an abuse of process, it is now necessary to do more than merely show that a civil claim started under Pt 7 or Pt 8 could have been brought by way of judicial review’. Clark is cited. As Sedley LJ explained in Clark, the court may now intervene, notwithstanding the currency of the limitation period, if the entirety of circumstances demonstrates that the court’s processes are being misused, or if it is clear that because of the lapse of time or other circumstances no worthwhile relief can be expected.

The example that Mr Anderson gave, of a claimant who applied unsuccessfully for leave to remain, went to ground to see if any steps were taken to remove him, and then, if detained, tried to challenge the lawfulness of the original decision in proceedings for false imprisonment, would be a cardinal example of such an abuse. But he does not suggest that anything of the kind is present here, and the evidence served does not support it. I can see that it might be a material factor if the impugned decision, which remains valid until it is successfully challenged, had ramifications for anyone apart from the claimant; but it did not.

The witness statements served on the claimant’s behalf provide some explanation for the delay in issuing proceedings, although they appear to be designed to explain the lapse of time since the alleged breach of investigative duty in June 2013 rather than the failure to seek judicial review of the decision of 27 June 2014, to which they are not directed. But it may still be helpful to refer to the evidence, such as it is.

The claimant’s witness statement dated 19 December 2016 shows that she first saw a solicitor, from Halliday Reeves, shortly after the 27 June decision was taken. During the 12 days of her detention up to 5 August 2014 she saw another solicitor, from Duncan Lewis. A different solicitor, also from Duncan Lewis, went with her to her asylum interview in October 2014. At some point, apparently around December 2014, when her asylum claim had been refused and her asylum support withdrawn, a friend put her in touch with the Snowdrop Project, which in turn helped her to find new solicitors, Howells. She does not give a date, but I infer that she instructed Howells in December 2014 or January 2015. Howells advised her that she could claim compensation, although it is not clear whether they would have been suggesting impugning the alleged breach of investigative duty or the 27 June 2014 decision. In March 2015 Howells wrote to the Home Office asking for the 27 June 2014 decision to be reconsidered. In April 2015 she was referred to her current solicitors, Deighton Pierce Glynn. These proceedings were not issued until 1 June 2015, over 11 months after the decision which is now attacked. She states that she has been asked to think about whether she could have approached solicitors about a claim for compensation sooner than April 2015, and explains that she was very upset and preoccupied and not in the right mind to think about such things. She exhibits a psychiatric report from a Dr Katona, who saw the claimant on 12 May 2015 and diagnosed a major depressive episode. He also refers to symptoms of PTSD, although he concludes that the claimant does not fulfil the diagnostic criteria for PTSD. Her condition could have affected her ability to give a full account of herself. Joanna Thomson of Deighton Pierce Glynn exhibits an addendum report by Dr Katona, who there declares that the claimant was suffering from mental health problems from at least August 2014, which are unlikely to have been of recent onset. He concludes that she probably had a depressive illness throughout the period from June 2013 to June 2015. Ms Thomson comments that it is not surprising that neither Halliday Reeves nor Duncan Lewis raised the possibility of a damages claim, because to her knowledge neither firm advises on such cases. In that, Ms Thomson appears to be wrong. Claire Duncan of the Government Legal Department (witness statement 17 January 2017) observes that Duncan Lewis is a specialist immigration firm, dealing with all aspects of immigration including unlawful detention and damages claims. She exhibits printouts from Duncan Lewis’ website which supports that proposition and shows that the firm has a public law team and that it advises on claims for damages for unlawful detention. Presumably, although I do not think that the printouts say so, it also advises on claims for judicial review.

It appears, therefore, that from early August 2014, less than 6 weeks after the 27 June 2014 decision was taken, the claimant had access to specialist advice from a firm of solicitors practising in public law and in particular the fields of immigration and unlawful detention. But there is no evidence as to whether or not they gave the claimant advice on the availability of a remedy by way of judicial review, or (if they did not) why that was. Her psychiatric condition might well have had a bearing on the instructions which she was able to give. I do not know. But I cannot regard the fact that she instructed specialist public law solicitors in August 2014 as evidence from which I can infer that the processes of the court are being flouted or abused, unless (contrary to my view) the claimant’s challenge to the 27 June 2014 decision is properly described as ipso facto abusive.

I therefore decline to strike out the false imprisonment claim in so far as it is founded on the reasonable grounds decision of 27 June 2014.

The second question is whether the Art.4 claim, based on the investigative duty on the defendants, should be struck out on limitation grounds. The breach is said to have arisen on 19 June 2013, when the claimant was interviewed and the defendants are said to have taken no or no adequate steps to investigate whether she might be a victim of trafficking.

I note that although this question arises as a preliminary issue, what I am asked to determine is not whether the Art.4 claim is or is not in time, or whether (if not) it would be equitable to extend time, but whether the claim should be struck out. On the face of it, that is a question to which CPR rule 3.4 applies. That entails the court considering whether the claim is reasonably arguable at trial, or whether (because of the limitation point) it is bound to fail.

By s7(5) HRA, proceedings must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court considers equitable having regard to all the circumstances. In fact, the claim was issued on 1 June 2015, when almost two years had elapsed.

Notwithstanding the case pleaded in the Particulars of Claim, namely that the defendants breached their investigative duty on or around 19 June 2013, the claimant shifts her ground in the Reply and pleads that the omission was a continuing one which began on 18 or 19 June 2013 and ended at the earliest on 27 June 2014, when the first conclusive grounds decision was made. She shifts her ground again in her counsel’s skeleton argument, where at [22] it is said on her behalf that the investigative duty was not discharged until 30 July 2015, when the conclusive grounds decision was made in her favour. If it is right that there was a continuing breach, then time runs from the point when the breach ended rather than when it began (A v Essex County Council [2011] AC 280 at [113]), and proceedings were issued within the primary limitation period.

The defendants assert that if (which they do not accept) there was a continuing breach, then that breach had come to an end by 14 February 2014, when the referral to the National Referral Mechanism (NRM) was made, thereby triggering an investigation as to whether or not the claimant was a victim of trafficking. On that analysis, she is 3½ months out of time. On the face of it, the defendants’ analysis is plausible, because it is not obvious how there could be a continuing breach of a duty to investigate once the defendants had set in motion that very process of investigation.

The issue then becomes whether it would be equitable to extend time. The court has a wide discretion to do so, and the question involves an open-ended examination of the relevant factors (see eg A v Essex County Council at [167] per Lord Kerr and Rabone v Pennine Care NHS Trust [2012] 2 AC 72 per Lord Dyson at [75]). Those will include such factors as the length of the delay, the extent of the claimant’s culpability for the delay, the relevance of any negligence on the part of her lawyers, the proper provision of legal counselling, and questions of prejudice to either party.

The particular factors of relevance here seem to me to be these. Firstly, there is a very substantial overlap between the facts relied on in support of the Art 4 claim and those relied on for the claim in false imprisonment based on the reasonable grounds decision of 27 June 2014. All of the facts relied on for breach of the Art 4 duty (Particulars of Claim paragraphs 10 and 11) are relied on for the case that the 27 June 2014 decision was erroneous. Secondly, it does not appear likely that the claimant herself was culpable for the delay. I have referred above to the evidence. She was plainly unwell during the relevant period, at least in part, it seems, because of the life to which she was subjected by the traffickers. If the claimant’s case on the art.4 breach is sound, the failure of investigation had the result that she was returned to them. To the extent that her mental state was exacerbated by that consequence, there is an argument that a contributory factor in the delay in issuing proceedings was the very breach of duty which the claimant alleges. Thirdly, she did have specialist solicitors who were capable of advising on a claim in damages. But it is impossible to reach any firm view as to whether or not there might have been negligence such that the claimant should be left to a claim against them, because that depends substantially on the instructions that she was able to give at a time when she was mentally unwell. That being so, refusal of an extension of time might deny her a monetary remedy even against her solicitors, whereas the prejudice to the defendants, who would in any event have to deal with the facts relied on for the case on the reasonable grounds decision, would be slight. Finally, if the claimant succeeds in her contention that there was a continuing breach until at least 14 February 2014, the length of the delay may be as little as 3½ months.

On the face of it, therefore, even if the claimant fails on the issue of continuing breach, she has at the very least an arguable prospect of persuading the trial judge to extend time.

I will take this very shortly. I mean no disrespect to the careful and thorough arguments of Mr Anderson when I say that questions such as these are not suitable for summary determination. To strike the claim out on limitation grounds would be to find that the claimant has no real prospect of success in persuading the trial judge either that the breach was a continuing one, such that she issued within the primary limitation period, or that time should be extended on equitable grounds, possibly by as little as 3½ months. I cannot possibly reach either conclusion on the material before me. In my judgment this part of the application is misconceived. These are questions for the trial judge.

The conventional function of pleadings is to plead the facts on which a party relies, not the evidence required to prove them. Unconventionally, then, Mr Buttler pleaded evidence, or at least appended evidence to his Particulars of Claim, in the form of an expert report by Professor Piotrowicz of Aberystwyth University.

The third preliminary issue is whether the claimant should have permission to rely on that report. The question is not, of course, determined by its appearance as an annex to the Particulars of Claim.

The professor is an eminent expert in migration law and particularly in the trafficking of human beings, and he is a member of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA). He offers the opinion that there were reasonable grounds on 19 June 2013 to believe that the claimant might have been trafficked, that the UK authorities (he means the current defendants) should have realised this and referred her case, should have taken steps to provide assistance to the claimant as a person who might reasonably have been believed to have been trafficked, and should have investigated a situation of potential trafficking in accordance with Art.4. Moreover, he concludes that on 19 June 2013 there were sufficient grounds in the account given to the Home Office by the claimant to indicate that she might have been trafficked.

CPR rule 35.1 provides that ‘Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings’.

Mr Anderson has referred me to the joint judgment of Lords Reed and Hodge (with whom the other Justices agreed) in the Scots case of Kennedy v Cordia (Services) LLP [2016] UKSC 6; [2016] 1 WLR 597.

It is clear from Kennedy at [44] that four particular considerations govern the admissibility of expert evidence. All four apply both to opinion evidence and to expert evidence of fact, where the expert witness draws on the knowledge and experience of others rather than or in addition to personal observation or its equivalent. In the case of the first consideration, the threshold for admissibility of opinion evidence is necessity. The four considerations are

The decision in Kennedy shows that if the subject matter of the expert’s opinion is necessary for the proper resolution of the dispute, and the judge would be unable to reach a sound conclusion without the help of the expert, then expert evidence will be needed. But if the judge can form his own conclusions without help, an expert’s opinion is unnecessary. The expert must avoid usurping the functions of the judge as the ultimate decision maker.

In Professor Piotrowicz’ case, there can be no doubt about his knowledge or experience of trafficking. I do not think that Mr Anderson challenged it, except to the extent of observing that the professor does not have expertise in carrying out or managing the process of assessment and decision as to whether or not to refer.

Mr Anderson submits that expert evidence is simply not necessary: the court is well used to determining issues of the lawfulness of decisions in relation to trafficking, and has done so without the benefit of expert evidence. Secondly, he submits that the issue of whether or not the facts were such that a referral should have been made goes to the very issue that the court has to decide. Thirdly, he questions whether the professor’s opinions can be said to be based on an established body of knowledge concerning the identification of potential victims of trafficking. Finally, he makes the point that costs should not be incurred in calling an expert witness to give unnecessary evidence.

Mr Buttler takes the preliminary point that the defendants initially agreed that the claimant could rely on Professor Piotrowicz’ report, but then changed their minds. Nothing turns on that.

On the question of the necessity of the evidence, Mr Buttler argues that the court will have to determine what standard of care was owed by frontline officers to the claimant and whether the standard reasonably expected of officers was breached in this case, just as would be necessary in a professional negligence claim. The judge cannot decide in a vacuum whether the information available to frontline officials should have triggered further enquiry. The question is whether the conduct of the immigration officer(s) fell below the standard of knowledge and inquiry expected of front line staff.

He also relies on the fact that the drafters of the Anti-Trafficking Convention, which informs the Art.4 duty, expressly recognised a role for experts in the implementation of the Convention. He points to Art.36, which provides for the establishment of a Group of Experts on Action Against Trafficking in Human Beings (‘GRETA’), one of whom is Professor Piotrowicz. The function of GRETA is (inter alia) to advise the Council of Europe on whether member states have properly implemented the Convention. In his skeleton argument he moves seamlessly from that statement of GRETA’s function to the conclusion that the draftsmen of the Convention had (he does not say ‘thereby’, but it is implicit) identified the need for expert opinion in determining compliance with (inter alia) the duty of investigation of potential trafficking. That does not seem to me to follow from the premise, and in any event such generalities are of little assistance on this question.

As for costs, Mr Buttler argues that the costs of the report have already been incurred, and it would be wasteful to throw them away when there is a realistic prospect of the trial judge deriving some assistance from the report. It should not, he suggests, be necessary for the professor to be called to give oral evidence, and the cost of written questions should be modest. In any event, the trial judge can always decide that the evidence does not assist; why, he asks, rule it inadmissible at this stage?

The question in issue on the Art.4 claim is whether the defendants knew or ought to have known certain objective indicators that should have alerted them to the possibility that she had been trafficked, such as to trigger a duty to investigate by referral to the NRM.

I will assume that the court will have, as Mr Buttler says, to determine the standard of care owed to the claimant by frontline officers. That is a matter on which I can accept that expert evidence could be helpful and admissible, just as it would be if the issue was the standard of care reasonably to be expected of a competent surgeon or accountant.

The difficulty, it seems to me, is that there is absolutely nothing in the report which assists on that question. What the professor does in his report is to set out the facts of the case, state what possible conclusions could be drawn from them, explain the duty to investigate, and state the conclusion that there were reasonable grounds on 19 June 2013 to believe that the claimant might have been trafficked, and that the defendant should have realised this and referred the case for investigation. That is an expression of opinion on the ultimate issue, which is a matter for the court and not for Professor Piotrowicz. I do not suggest that Professor Piotrowicz has approached his task other than in an independent and impartial spirit, but in my judgment the contents of the report, the concluding expression of opinion on the ultimate issue apart, are no more than one would expect from a written argument by competent counsel.

I do not say that expert evidence is not in principle admissible in a case such as this. But in my judgment there is nothing in Professor Piotrowicz’s report that is necessary to assist the court in its task. Moreover, the conclusions of the report usurp the court’s function as the ultimate decision maker. It is therefore not admissible evidence. The fact that the claimant’s advisers have already spent public money on the report cannot alter that consequence. I refuse the claimant permission to rely upon it.

In the outcome, I decline to strike out the part of the false imprisonment claim founded on the 27 June 2014 decision as an abuse; I decline to strike out the claim for breach of Art 4 ECHR; and I refuse the claimant permission to rely on the report of Professor Piotrowicz. I will hear counsel on consequential matters. Given that I shall not be in London for the foreseeable future, I shall be content with written submissions on the draft order.