IN THE COURT OF APPEAL
C1/2005/1659
The Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday, 12th July 2006
Before
LORD JUSTICE CHADWICK
LORD JUSTICE KEENE
SIR PETER GIBSON
Alison Hardy & Rodney Maile
Appellants
-and-
(1) Pembrokeshire County Council
(2) Pembrokeshire Coast National Park Authority
Respondents
-and-
(1) Dragon LNG
(2) South Hook Terminal Company Limited
(3) Health and Safety Executive
(4) Milford Haven Port Authority
Interested Parties
MR WOLFE appeared on behalf of the Appellants
MR COOKE appeared on behalf of Pembrokeshire County Council
MR STRAKER, MISS PATRY and MR TROMANS appeared on behalf of Pembrokeshire Coast National Park Authority, Dragon LNG, South Hook Terminal Company LTD, and The Milford Haven Port Authority
MR HYAM appeared on behalf of the Health and Safety Executive
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Judgment Re: application that the Tribunal recuse itself (Unapproved)
Chadwick LJ:
1. Before we move on, I will give our judgment on the application that the court recuse itself. On the 17th March 2006, this court handed down its written judgment on an application for permission to appeal from an order made on 26 July 2005, in Judicial Review proceedings brought against Pembrokeshire County Council and Pembrokeshire Coast National Park Authority. The object of those proceedings was to challenge the grant of planning permissions and hazardous substance consents, in respect of two separate proposals for the construction of very large Liquefied Natural Gas terminals at Milford Haven. The planning permissions and the hazardous substance consents had been granted to the Dragon LNG Ltd, in respect of one terminal, and the South Hook LNG Terminal Company Limited (SHTCL) in respect of the other. Those companies joined in the proceedings as interested parties. Other interested parties were the health and safety executive and the Milford Haven Port Authority.
2. The application for permission to apply for Judicial Review came before Mr Justice Sullivan in July 2005. He refused the application for the reasons set out in and his full and careful judgment [2005] EWHC 1872 (Admin). In essence, his view was that the challenge had been made too late. That view can be seen expressed by the judge at paragraphs 58, 72, 74, 84 and 85 of his judgment. I think it is sufficient in the context of this application simply to read paragraphs 84-85 under the heading ‘Conclusions:
“84. The Claimants represent a point of view held by some residents who live near the terminals. All of their concerns were raised at the relevant meetings of the First and Second Defendant since March 2004. If the Claimants wished to challenge the Defendants' decision on the 7th December 2004 on the basis of those concerns they could and should have done so much earlier, and in the case of all the other decisions, very much earlier, than 4th March 2005.
85. For these reasons I refuse to grant permission to apply for judicial review, because the challenge was not made sufficiently promptly, and there has been undue delay, and quashing the decisions would substantially prejudice the rights of the first and second interested parties and cause them substantial hardship, and would be very detrimental to good administration.”
3. It was perhaps because he took the view that the delay was fatal to the challenge by way of judicial review that Mr Justice Sullivan did not find it necessary to deal full argument on the substantive merits of the claim. He refers to that the first sentence of paragraph 81 of his judgment, which is in these terms:
“…Although much of the Claimants’ skeleton argument before me was devoted to the merits of the claim, I have not heard full argument on the substantive issues, which are vigorously contested by the Defendants and the interested parties; they deny that there was any misunderstanding as to the characteristics of LNG in the event of an escape. ”
4. It was for that reason, when the matter came before me for consideration on the papers of an application for permission to appeal, that I adjourned the application into court for oral argument on the limited question whether the judge, in taking the view that the delay was fatal to the challenge, had failed to give proper weight to the obligations imposed by Article 2 of the European Convention on Human Rights and s.6 of the Human Rights Act 1998. That appears from my order of 19 October 2005.
5. It appeared to me, as I think it had appeared to Mr Justice Sullivan, that if the applicants could not overcome the hurdle imposed by the delay, which he had identified, then the application, whether seen as an application for permission to apply for judicial review, or as an application for permission to appeal from the refusal of an application for permission to apply for judicial review, must necessarily fail.
6. The application for permission to appeal was heard on 20 January 2006 by the present constitution. Judgments were handed down on 17 March 2006 and are found at 2006 EWCA Civ 240. They had been made available to the parties’ advisors in draft, on the usual terms, a few days earlier. The only substantive judgment was that of Lord Justice Keene, with which Sir Peter Gibson and I expressed our agreement. After setting out the facts in outline, Lord Justice Keene addressed the question of delay at paragraphs 7-18 of his judgment. At paragraph 19-20, he considered the applicants’ criticisms of the judge’s conclusion that the delay, followed by judicial review procedures, would cause prejudice to the third parties. At paragraphs 21-33, he addressed the arguments advanced in this court on the issue of public safety and the right to life guaranteed by Article 2 of the European Convention. Paragraphs 26-28 of his judgment are material to the applications now before us, and I shall read them:
“26. It is obvious that public safety is potentially an issue of importance and that, if there is evidence that it has been overlooked or not properly considered by the decision-maker, then that may justify permission to seek judicial review. Public safety must be a material consideration in the decision-making process carried out by the hazardous substances authority, irrespective of Article 2 considerations. Having said that, it is necessary to recognise that the judge considering such an application for permission is not expected to conduct what would amount to a substantive hearing of the merits. It is true that, even where there has been no breach of the requirements of CPR 54.5(1), the applicant has to show that the merits disclose an arguable case for relief. Where there has been a breach of those requirements, as in the present case, the applicant clearly has to go further and show that the merits are such as to justify an extension of time. But, as Lord Diplock pointed out in R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed Limited [1982] A.C. 617 at 643 H
“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage.”
27. That is the context in which one has to approach Mr Justice Sullivan’s statement at paragraph 81 of his judgment in the present case that he had not heard full argument on the substantive issues (and the word ‘full’ is emphasised). That was not surprising. But it is clear that he was alive to Article 2 and public-safety issues, since he deals with these under the heading “Does the public interest require that the application should be permitted to proceed?” In paragraph 81 again, he specifically refers to the evidence from the fourth interested party, the Milford Haven Port Authority, giving details of the way in which it had assessed the marine traffic implications of the proposals. That is of particular relevance, because the thrust of the applicants’ case was and is that there has been an inadequate assessment of the marine risks associated with the terminal proposals. The Milford Haven Port Authority is a statutory body required to ensure the safety of waters within its jurisdiction. The evidence before Mr Justice Sullivan made it clear that the Port Authority was satisfied as to the safety of the terminal proposals, so far as its own sphere of responsibility was concerned, while the Health and Safety Executive had advised that it was content, so far as the land-based activities were concerned. Both these bodies had so advised the decision makers, the County Council and the Park Authority, who were entitled to rely on the specialist advice received from those bodies.
28. In those circumstances, it seems to me that it was open to Mr Justice Sullivan to conclude that the merits of the applicants’ claim did not outweigh the undue delay and the prejudice which permission to proceed would produce. This court has held that striking such a balance is a matter of discretion for the judge dealing with the application, and this court will not intervene unless there has been an error of principle: R v. Vale of Glamorgan Borough Council, ex parte James [1997] Environment Law Report 195. I am not persuaded that any such error in Mr Justice Sullivan’s approach has been shown, nor is his decision obviously wrong. He was entitled to reach the conclusion which he did.”
7. Lord Justice Keene then went on to observe at paragraph 29 that in the light of that conclusion it was strictly unnecessary to scrutinise in greater depth the decisions of the County Council and the Park Authority when granting the planning permissions and the hazardous substance consents. As he said, we had detailed submissions addressed to us about those decisions and the alleged deficiencies in them and he would address them briefly. He did so at paragraphs 29-33. In particular, he addressed the question whether the decision takers had given adequate consideration of what were described as ‘marine risks’, that is to say the risks to those in the Milford Haven area from an escape of LNG from a ship. Those risks included the risks if an escape occurred as a result of a collision between a large ship manoeuvring in the Haven and an LNG carrier or delivery vessel moored at a jetty serving one of the terminals. The risk of collision had been considered by the Port Authority who had reached a conclusion that that risk was adequately contained, but it was argued that proper risk assessment had to have regard, not only to the risk of collision, but also to the consequences were a collision to occur. It was said there was a lacuna in the risk assessment, in that there was an absence of any assessment of the consequences for the local population of a vapour cloud were there to be an escape of LNG as a result of a collision with an LNG carrier moored at the end of the terminal jetty. That submission was addressed by Lord Justice Keene at paragraph 32 of his judgment and I must read that paragraph:
“32. I do not accept that the evidence before us, including the evidence submitted on behalf of the applicants since the oral hearing, demonstrates any such arguable lacuna. One has to bear in mind in this connection the very extensive assessments carried out by the Health and Safety Executive, because these provide the context for the Port Authority’s assessment. The Health and Safety Executive did assessment which considered both the consequences and the likelihood of an escape of LNG for all land-based and jetty-based activities. Those included the risks of catastrophic failure of an LNG storage tank at the terminal; the failure of a loading arm at the jetty while LNG was being transferred from ship to shore; and “major release from a delivery ship while tied up at a jetty”: see HSE responses to Park Authority, 5 March 2004, and the HSE Summary Grounds of Resistance, paragraphs 10 and 11. Having carried out these assessments the Health and Safety Executive did not object to the proposal for either terminal on safety grounds.”
8. It is important to keep in mind the reference in that passage to the HSE summary grounds of resistance paragraphs 10 and 11. There is a further reference to the HSE summary grounds of resistance at paragraph 33 of Lord Justice Keene’s judgment. As I have said, the judgments were provided in draft to the parties’ advisors a few days before they were handed down on 17 March 2006. On 15 March 2006, the applicants’ solicitors wrote to the clerk to Lord Justice Keene to draw attention to what was said to be a serious error of fact in his draft judgment.
9. The error was said to lie in the third sentence of paragraph 32 of that draft judgment where, amongst the risks said to have been assessed by the HSE, were risks associated with “major release from a delivery ship while tied up at a jetty.” In paragraph 32 of the draft judgment support for that sentence was said to be found in the HSE responses to the Park Authority on 5 March 2004 and in the HSE summary grounds of resistance paragraphs 10 and 11. The letter of 15 March 2006 makes its point in these terms:
“Paragraph 2 of the 5th March 2004 document (AB 168) deals with “uncertainties of whether HSE should include failures on the ship …” and paragraph 6 says in terms “HSE do not take account of accidents which happen on the ship, in giving its advice on hazardous substances consent.” (AB 171).
We cannot find the words in quotation marks “major release from a delivery ship while tied up at a jetty” as quoted in paragraph 32 of the draft judgment anywhere in the March 5th document that the Court refers to. Those words only appear in the HSE summary grounds paragraph 11(e) Summary Grounds bundle, page 88. There is no source for them that we are aware of other than as follows: having searched the background documents we find almost precisely the same list of points in an HSE report dated 30th June 2003 which lists matters which would need to be done to consider the proposal fully. The point is that this required work was never in fact done as confirmed in the documents referred to below, the statement in the summary grounds inferring that the work was done is simply wrong.”
Then there follows a number of documentary references which lead to an analysis of the documents which are said to confirm the contention advanced that the work required as identified in the June 2003 report was never in fact done. The court was asked to reconsider its judgments in the light of the point made in the letter of 15 March 2006 in the terms which I have just referred.
10. Lord Justice Keene did not alter his judgment in the light of these representations and Sir Peter Gibson and I did not qualify our expressions of agreement with his judgment as delivered. The matter was referred to briefly in discussions following the hand down of judgments. The passage is at page 5 of the transcript of those discussions beginning at letter (F). The counsel attending the hand down for the applicants said this:
“MISS HETHERINGTON: My Lords, for the record could I possibly ask the court to confirm that they have received and considered the letter of Richard Buxton dated 15th March 2006?
LORD JUSTICE CHADWICK: Yes, we have.
MISS HETHERINGTON: I am much obliged.
LORD JUSTICE KEENE: And you will see, although you haven’t had chance, no doubt, to check it, that the textual corrections, the typing errors and so on, referred to there have been made in the judgment that I handed down.”
11. There was no further reference there to the letter of 15 March and particularly no discussion of the error of fact point that had been raised in that letter. In fairness to counsel, I should add that she had not appeared at the substantive hearing, she was instructed I think only to attend for the purposes of taking judgment.
12. Following judgments, in which, as I have said, the court refused permission to appeal, the applicants issued an application of notice. That notice is dated 10 April 2006. It is notice of the solicitors’ intention, on behalf of the claimant, to apply for an order that the Court of Appeal reopen the appeal against refusal of permission to bring an action for judicial review of the defendants’ decisions in accordance with CPR 52.17. Strictly, and expressed in that way, relief in those terms would be inapposite. The court has not heard an appeal from Mr Justice Sullivan’s refusal of permission to apply for judicial review. What the court heard and dismissed on 17 March 2006 was an application for permission to appeal. The significance of the point of course is that if the court had heard and determined an appeal, it would have been open to the disappointed appellants to seek permission to appeal further to the House of Lords; but that course is not open to an applicant whose application for permission to appeal is refused. See Section 54.4 of the Access to Justice Act 1999. It is that feature which satisfies the requirement in paragraph (c) of CPR 52.17 (1). The rule is, in these terms:
“The Court of Appeal or the High Court will not reopen a final determination of any appeal unless-
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.”
13. At paragraph 2 provides that appeal includes an application for permission to appeal. I shall read paragraphs 4,5,6 and 7:
“(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.”
14. The requirements therefore are that it is necessary to reopen the application for permission to appeal, heard and determined on 17 March 2006, in order to avoid real injustice and that the circumstances are exceptional and make it appropriate to reopen that application. The application in the present case, as appears from the application notice of 10 April 2006, is made on the basis that the Court of Appeal acted unjustly. The particulars of that allegation are set out in the grounds filed with the application notice. It is I think sufficient in this context to refer to paragraph 6 (1) of the summary of those grounds:
“In summary, the Appellants apply here on the grounds that:
1. There were obvious factual errors in this judgment and the Court failed to give reasons for rejecting the submission that there were such errors.”
That point is developed under a heading Grounds (1) and (2): obvious factual error and failure to give reasons to rejecting the contention that there was an obvious factual error; under paragraphs 1 27.
15. After setting out the history and referring to paragraphs 31 33 in the judgment of Lord Justice Keene, the applicants say this at paragraphs 25 27:
“Accordingly, for the reasons set out in the 15 March 2006 letter and the fifth witness statement of Richard Buxton, the Court’s central conclusion is based on a material error in relation to the evidence: Ground 1.
26. Even if the relevant assessment(s) had been done (by HSE or MHPA or them in combination), the Court further failed to deal with the evidence before it (including in the 15 March 2006 letter) to the effect that such material, or even summary advice based upon it, had not, in fact, been before the decision makers - the very point upon which the Court specifically asked the Respondents and Interested Parties for information at the hearing and on which the Appellants provided written material to supplement their oral submissions.
27. Accordingly and in any event, the Court has not given any explanation or reasoning, as it needed to do (both in domestic and EU law, both being in play here), for rejecting the Appellants’ contrary contentions: Ground 2.”
16. The application under CPR 52.17 was referred to me for consideration on paper as is the usual practice in relation to such applications. See paragraph 25 of the practice direction supplemental to CPR 52, noted at 52 PD 136 in the Civil Procedure Rules.
17. Before any order had been made on that application, the Civil Appeals Office received from the Treasury Solicitor, as solicitor for the Health and Safety Executive, a copy of a letter which the Treasury Solicitor had sent to the solicitor for the applicants. The letter has importance in the context of the present applications and I must read the two relevant paragraphs.
“With regret, I must inform those involved in the case that there was an error in the third Interested Party’s Summary Grounds of Resistance, filed on behalf of the Health and Safety Executive. At paragraph 11(vi) the Grounds state that my client’s comprehensive risk analysis included risks associated with “Major release from a delivery ship while tied up at a jetty”.
The statement is not correct. The HSE did not carry out a comprehensive risk analysis of the risks arising from a “Major release from a delivery ship while tied up at a jetty”. The scope of the comprehensive risk analysis in fact carried out by my client is set out in paragraph 10 of my client’s Grounds and included the risks referred to at paragraphs 11 (i) to (v) of those Grounds (but not the risks referred to in paragraph 11 (vi). The position was as set out in, for example, my client’s letter dated 16 August 2004, referred to at paragraph 13 of my client’s Grounds, which stated “Risks that may arise from the presence of other substances, or from the presence of LNG on a delivery ship, either when sailing or when berthed, have not been taken into account in the assessment.”
18. The third interested parties’ summary grounds of resistance to which reference is made in that letter and in paragraphs 32 and 33 of the judgment of Lord Justice Keene are dated 28 April 2005. They were amongst the material that was before Mr Justice Sullivan at the original hearing. They do indeed contain statements in paragraph 10 and 11 (6) which are in these terms:
“10. In the present case, the HSE carried out a comprehensive risk analysis of the land based and LNG loading/unloading operations covering all LNG operations on the terminals from the pipelines connecting arms to the ships at the end of the jetties.
11. Those assessments included consideration of the proposed facilities which included the construction of two vessels for the storage of LNG which would be delivered to the site from a ship moored at a jetty via loading arms and pipework and of any associated risks, including (i) catastrophic major and minor failures of an LNG storage vessel, (ii) guillotine rupture of a 30 inch pipeline between the jetty and storage vessels, (iii) failure of a loading arm at the jetty, (iv) major release into the gasification area, (v) major failure from the pipeline from the degasification area to the site boundary, and (vi) major release from a delivery ship while tied up at the jetty.”
19. They do contain reference to a letter of 16 August 2004 in paragraph 30. The quote is:
“Only the risks from the hazardous substances for which the consent exists or is being sought has been assessed. Risks that may arise from the presence of other substances or from the presence of LNG on a delivery ship, either from sailing or when berthed, had not been taken into account in the assessment.”
20. The UK competent authority and hence the focal point for all issues pertaining to the transport of dangerous goods by sea is the Maritime and Coastguard Agency. Reading paragraph 13 with paragraph 11 (6) of those summary grounds, the meaning is clear. The risks assessed do not include risks arising from the presence from LNG on a delivery ship while berthed, but they do include risks which would arise from a major release of LNG from the delivery ship while berthed. That is to say, risks assessed do not include risks of collision but do include risks associated with the escape of LNG as a result of collision. It is that point which is affected in the judgment of Lord Justice Keene at paragraph 32 and it is that point which is now accepted by HSE to be in force. The risks assessed included the risks of escape from the loading arm or pipeline on the jetty, but not the risks of escape from the ship if the ship were damaged by a collision.
21. On consideration of the CPR 52.17 application in light of that letter of 27 April 2006, I gave the following direction on 8 May 2006:
“Adjourn this application for oral hearing with notice to all respondents. The court will be assisted by representations on behalf of all parties limited to the question whether this appeal should be re-opened in the light of the information provided by the Treasury Solicitor, as solicitor to the HSE, in their letter to the Civil Appeals Office of 27 April 2006. Written submissions, limited to that question, are to be lodged with the court not later than 72 hours before the time fixed for oral hearing. List for oral hearing as soon as convenient before the original constitution.”
22. That was a direction under CPR 52.17 paragraphs 5 and 6. It limits the scope of this oral hearing to the question of whether the appeal should be reopened in light of the fact that HSE now accepts that the statement made in paragraphs 10 and 11 (6) of the summary grounds were wrong. In relying on the statements in paragraph 32 of Lord Justice Keene’s judgment, the court was misled. That is the point which the applicants make under ground 1 of the application of 7 April 2006 and which had been made under the heading of “error of fact” in the letter of 15 March 2006.
23. It is not now necessary to consider arguments advanced in support of the contention that there was an error in the facts stated at paragraph 11 (6) of the summary grounds of resistance. The existence of the error is now accepted without the need for further argument. The question for this court on the application under CPR 52.17, as it seems to me and before hearing argument upon it, is whether the fact that the court relied upon statements in paragraphs 10 and 11 (6) in reaching the conclusion expressed in paragraph 32 of the judgment of Lord Justice Keene should now lead to the conclusion that it is necessary to reopen the application for permission to appeal in order to avoid real injustice to the applicants and to the conclusion that the circumstances are exceptional and make it appropriate to reopen that application. I have taken time to explain, and why I identify that as the question which we have to decide on the CPR 52.17 application and the circumstances in which that question arises, because before we hear argument on that question, there is a threshold question: should we recuse ourselves from deciding the CPR 52.17 question at all?
24. That question arises in this way. The letter of 10 April 2006, under cover of which the CPR 52.17 application was sent to the Civil Appeals Office, contains this paragraph:
“We understand that as a matter of routine these applications go back to the original tribunal, although we would imagine that in this case the members would recuse themselves.”
25. Following my directions on 10 May, that the matter be heard before the original constitution, the applicants, through their solicitor, wrote in these terms:
“In our cover letter of 10 April, we made it clear that we expected the original members of the tribunal to recuse themselves. As implicit there, we expected this to happen without the need to elaborate why. In brief, the position is, of course, that the members of the original tribunal would be judges in their own cause if they were to consider the application to re-open.
That would offend one of the most basic principles of natural justice. It would be particularly unacceptable in a situation like the present involving a matter of major public interest and the thousands of lives, property etc. potentially at risk if safety issues are not dealt with properly.
In summary, for the original tribunal to hear the matter would involve a situation of apparent bias. We would respectfully submit that in the interests of avoiding any appearance of apparent bias and ensuring a fair hearing the application should be considered by a newly constituted court.”
26. That led to a response from Eversheds, the solicitors for the respondents, in a letter dated 25 May 2006 in which they wrote:
“We do not see that there is any reason for the Lord Justices who originally heard this matter to recuse themselves. There is no suggestion by the Claimants of apparent bias as regards the conduct of the Lords Justices to date. In the event that a newly constituted bench were to hear the Claimants’ application, there would inevitably be repetition of the previous hearing and a great deal of unnecessary work would be involved for the Lords Justices, not to mention unnecessary costs for the parties involved. Our view is therefore wholly contrary to that of Mr Buxton, namely that for all practical purposes the original constitution of the Court of Appeal is the only one capable of adjudication on his latest application.”
27. The Treasury Solicitor, in a letter of 26 May 2006, on behalf of her clients, confirmed that she agreed with that view. The point as to bias was elaborated further in a letter of the same date, 26 May 2006, from the applicants’ solicitor:
“The points are probably obvious to the Court but to avoid any doubt:
- Apparent bias to date: the terms of the May 8 order do in our respectful submission indicate bias, as the Court appeared to be prepared to consider at the forthcoming hearing the information provided by one party but not the same information provided by the claimants.
- Apparent future bias: assuming (as we submit it must: see above and earlier comment on ambit) that the Part 52.17 application is considered in the round, this involves the Court having to consider the way it has conducted the matter as set out in the application and now reinforced by the HSE’s information. It would not, we submit, be right for the original tribunal to judge this.
As to the additional work involved, the issues are becoming better crystallized, so that a new tribunal should be able to grasp the situation quickly.”
28. Following that letter I gave further directions, which were communicated, to the parties by the Civil Appeals Office in a letter of 13 June 2006. I directed that my order of 8 May 2006 should not be varied:
“The only issue on which the Court is prepared to entertain an oral hearing with an application under CPR 52.17 is that specified in that order and identified under the heading “Ambit” in Eversheds’ letter of 25 May. The applicants’ attention should be drawn to the note at the foot of the order of the order of 8 May 2006. The hearing is to be listed before the original constitution. The applicants may if they are so advised renew their application to ask that the members of the constitution recuse themselves; but if that application is unsuccessful the hearing will proceed to consider the issue which is specified in the order of 8 May 2006.”
29. The reference to the note at the foot of the order of 8 May 2006, which is on form 269.1, is to draw attention to the fact that where an application is refused the decision of the judge is final and the application cannot be renewed to an oral hearing. Reference is made to Taylor v Lawrence and the reference to the issue as identified under the heading “Ambit” in the Eversheds’ letter is:
“It seems to us that the issue identified in the order, which is the only one that even warrants consideration under the strict terms of Part 52.17, needs to be resolved before the parties can establish on what basis, if any, they need to prepare for any further hearing.”
30. The claimants’ response to my directions of 13 June are set out in a letter of 3 July 2006. Their solicitor writes:
“We obviously hope that the Court of Appeal will, given the issues raised in our application and confirmed by the HSE, in fact re-open this matter. To try and avoid this matter dragging on, we intend to approach the hearing as follows:
- Formally to ask that the members of the tribunal recuse themselves. We need to do this in order to preserve the scope for appeal. To save time, the reasoning will be set out in a skeleton argument. The basic points are summarised in a letter to the Master of the Rolls referred to below and attached. We believe these all point to a requirement for recusal. However this point would become academic if in fact the Court does order that the matter be re-opened (for consideration by a different tribunal, or, we suppose, if it immediately grants permission and orders it back to the High Court on a substantive basis.)“
31. There are two matters which I find troubling about that letter. First, that it should be suggested that a formal application to the tribunal to recuse itself is to be made in order to preserve the scope for appeal in circumstances in which there would not otherwise be an appeal against a decision under section 52.17. Secondly, the suggestion that if the tribunal would actually decide the 52.17 point in favour of the applicants then the question of recusal would become academic and need not be addressed. Neither of those points attract me.
32. The point is developed in the letter to the Master of the Rolls of the same date, a copy of which was sent to the court. Under the heading “Recusal,” the solicitors write:
“This is the heart of the problem. Before lodging the Pt 52.17 application in April we spoke to the case lawyer about who would deal with the application. (We understand this to be the case because the vast majority of Pt 52.17 applications do not involve issues as to the conduct of the appeal court.) However, we were told that judges were sensitive about this and would recuse themselves if appropriate. Expecting not the slightest problem with recusal, we mentioned this “lightly” in our covering letter.”
33. They go on to refer to my substantive order and to the recent decision of this court in Sir Alexander Morrison v. AWG Group Limited [2006] EWCA Civ. and say:
“We do not understand why the tribunal did not immediately recuse once it read the Pt 52.17 application. The terms of that obviously (albeit regrettably) involve the Court having to consider its own conduct [having passed?] must, by definition, be present if an existing tribunal considers our application at all (beyond immediately realising that there is a potential problem and passing it back to the Civil Appeals Office staff for reallocation.”
34. As promised in the earlier letter, the arguments were further developed in the counsel’s skeleton argument filed shortly before this hearing and dated 7 July 2006. They are confined to a short paragraph, paragraph 3:
“As contemplated in correspondence, the Claimants do formally ask the members of the court to recuse themselves. Their concern, and the basis for the request, is that they consider that it is wrong in principle for members of the court to consider an application which raises grounds challenging the same panel’s handling of the appeal. That concern is not directed to the particular members of the panel. It is systemic and would arise wherever (which is presumably by no means always the case) an application under CPR Part 52.17 raises concerns about the appeal before the Court of Appeal, as opposed to raising issues in relation (for example) to the hearing below, or other matters. They submit that where a CPR Part 52.17 application raises matters about the appeal itself, then it should be dealt with by another member (or members) of the Court of Appeal.”
35. I hope I may be forgiven if I say that the grounds upon which it is said that this court should recuse itself from hearing the only application that is acted for us has shifted somewhat in the course of that correspondence. I think that three strands can be identified from that correspondence. First, it is said that there would be an appearance of apparent bias because the court would have to consider the circumstances in which it did not alter its judgments before delivery in response to the letter of 15 March 2006. Secondly, it is said that there is an appearance of bias because, on 8 May 2006, following receipt of the HSE letter, the court decided that an oral hearing of the CPR 52.17 application was appropriate. Thirdly, perhaps that there would be an appearance of bias if the court went on to consider or reconsider the application for permission to appeal in circumstances in which it was reopened and there was an earlier judgment.
36. It was therefore something of a surprise to find that when the request was made at the hearing this morning reliance was placed upon section 56.1 of the Supreme Court Act 1981. That had not featured in any previous correspondence or skeleton argument. The section 56.1 provides that:
“(1) No judge shall sit as a member of the civil division of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to, an appeal for a judgment or order made in any case by himself or by any court of which he was a member.”
37. The point can be dismissed shortly. This court is not hearing an appeal from any judgment or order which it made, nor is it determining an application in proceedings incidental or preliminary to an appeal from any judgment which it gave. The judgment which it gave, on 17 March 2006, is not under appeal. It could not be under appeal because section 54.4 specifically prevents an appeal from that judgment. What the court is doing is sitting on the extraordinary jurisdiction identified by this court in Taylor v Lawrence and now formalised in CPR 52.17. It is considering whether to reopen its judgment on an application. Section 56.1 has no direct application, nor does it have any indirect application. The court does not need to be binded by section 56.1 that a judge should not sit as judge in his own cause; but the court has no cause.
38. The question for the court, as I have sought to identify, is whether the fact that as now appears it was misled by statements in the summary grounds of resistance filed by HSE when it gave its judgments on 17 March 2006 should lead it to reopen the hearing which it was then conducting. Those were statements which were made in a summary supported by a statement of truth, signed on behalf of HSE by the Treasury Solicitor, on 29 April 2005. On the face of that affirmation, the court was entitled to assume that its statements were true and it proceeded on that basis. As I have said, it now appears that it was misled. The narrow mission is whether the application for commission to appeal should be reopened on the ground that the court was misled.
39. In the course of submissions, it seemed to be accepted by counsel on behalf of the applicants that, on the narrow question of whether the application for permission to appeal should be opened on the ground that the court was misled by the Health and Safety Executive’s summary of objections, there was no appearance of bias. However, on taking further instructions from his solicitor, the counsel sought to qualify that concession clearly made. He sought to qualify it on the grounds that the court appeared to be acting in a partisan way in circumstances in which it was now prepared to reopen the question following the receipt of the letter from the Treasury Solicitor confirming the true position, whereas it had not been prepared to reopen the matter when the solicitor for the claimants had made representations as to the issue of fact that was then in dispute.
40. For my part, I can see no appearance of bias arising from that fact. What happened was that the positions changed when the letter from the Treasury Solicitor was received. Until that date, there was an issue of fact as to whether or not the Health and Safety Executive had carried out the tests and risk assessments which they said they had carried out. The issue of fact arose because the applicants asserted that those risk assessments had not been carried out. The Health and Safety Executive, in a summary of grounds – the truth of which was verified by its solicitor – asserted that they had been. That question of fact was determined against the applicants in the judgments which this court handed down on 17 March, as appears from paragraph 32 of Lord Justice Keene’s judgment. It is clear that it was determined against the applicants in reliance on what was said in the summary grounds of objection.
41. In both circumstances, it would have been remarkable for the court to reopen that question of fact in the period between the delivery of the draft of its judgments and the formal handing down of those judgments. The purpose of delivering judgments in draft is not to invite further submissions on questions of fact which have already been decided, but to enable the parties to draw attention to obvious errors of fact, such as a mis name or a mis date, nor would it have been a proper ground for reopening the application for permission to appeal that the claimants, through their solicitors, continued to assert that the court had reached the wrong conclusion of fact on the evidence that change occurred when it became clear that the court had reached the conclusion of fact which it did as a result of being misled by the Health and Safety Executive through the statement of objections.
42. The question which the court now has to decide is not whether the facts were correct or not correct. The question it now has to decide is whether, given an acceptance that the fact is not correct, there is a real injustice to the parties in the result of the permission to appeal application. I am not persuaded that, in addressing that question, there is any appearance of bias. For those reasons, I would reject the application that we recuse ourselves.
Keene LJ: I agree.
Sir Peter Gibson: I also agree.