Neutral Citation Number: [2008] EWHC 3246 (Admin)

Case No. CO/7529/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 28th October 2008
 
B e f o r e: 

MR JUSTICE SULLIVAN 

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THE QUEEN ON THE APPLICATION OF ANTHONY PRITCHARD 
Claimant 
v 

HER MAJESTY'S CORONER FOR OXFORDSHIRE 
Defendant 
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Mr V Sachdeva (instructed by Linder Myers Solicitors) appeared on behalf of the Claimant 
Mr Andrew Sharland (instructed by the Treasury Solicitor, London WC2B 4TS) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE SULLIVAN:  This is a renewed application for permission to apply for judicial review of the defendant's decision in October 2005 not to hold what for the purposes of this claim can conveniently be described as a full inquest.
2.	The coroner made his approach to the matter quite clear in a file note of a telephone conversation of 5th October 2005, in response to a letter from the claimant's solicitors asking that a broader "Middleton" ([2004] UKHL 10) ‑type inquest be held.  For present purposes the issue can be described thus.  The coroner decided to investigate the question how the deceased died in the relatively narrow context of how did he meet his death, as opposed to in the broader context: in what circumstances did the deceased meet his death?
3.	As I say, the coroner's decision as to how he would conduct the inquest was made clear on 5th October 2005.  The inquest duly took place without a jury on 11th October 2005 and the inquisition was provided to the claimant's solicitors within a couple of days thereafter.
4.	The claim form was filed on 8th August 2008, that is to say two months short of 3 years after the decision under challenge.  Although there has been a great deal of information provided by Mr Sachdeva on behalf of the claimant in relation to applications for CLS funding, the real reason for the making of this very belated application is the handing down on 11th April 2008 of Collins J's judgment in the case of R (Smith) v Assistant Deputy Coroner for Oxfordshire [2008] EWHC 694 (Admin), [2008] 3 WLR 1284.
5.	Again, for present purposes it is unnecessary to rehearse in any great detail the decision in Smith, which is in any event under appeal to the Court of Appeal.  It is sufficient to say that in that case one of the matters which Collins J had to decide was whether or not the mere fact that British soldiers were subject to United Kingdom jurisdiction while operating in Iraq meant that the Human Rights Act applied to them wherever they might be in Iraq.
6.	Is unnecessary to go into the detail of that case because the court's approach to the effect of a subsequent decision which alters the previously understood basis on which earlier decisions had been made is in my judgment well established.  As a general rule the court will not allow appeals or applications out of time in respect of earlier decisions that had been made on a particular legal basis simply because subsequently a higher court has concluded that the law was different from that which was assumed to apply by the earlier lower court.  There is some assistance to be derived from the notes in paragraph 52.17(1) of the White Book, which are concerned with the Court of Appeal's powers (and indeed parallel powers in the High Court) to reopen final determinations.  There is a residual power, but it is exercised very sparingly and only to avoid real injustice in exceptional circumstances.
7.	It simply is not enough for a party to come along, perhaps after many years, and say that they now realise that the law is different from that which they understood it to be when the decision was taken by the court at an earlier stage.  There is a clear interest in the finality of litigation and it would be most undesirable in principle if decisions by coroners in 2005 could be reopened in 2008, merely upon the basis that, with the benefit of hindsight and subsequent legal decisions, it can be seen, arguably, that the coroner applied the wrong legal test.
8.	In support of his submissions Mr Sachdeva referred to two authorities in particular, Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 and the later case of Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2007] 1 AC 558.  In my judgment those cases deal with the rather different question, that is to say where money has been paid over under a mistake of law can the body that paid the money seek its repayment on the basis that it was paid under a mistake, notwithstanding that the mistake was a mistake of law?  The answer to that question is "yes" in the light of those two decisions by the House of Lords.  However those decisions are not concerned with cases analogous to the present case, where there has been a decision of a court or tribunal upon a particular legal basis which was accepted or assumed to be correct at the time the decision was given, but has subsequently been falsified by a later decision of a higher court.  As I say, that is a different circumstance and in those circumstances there is a very powerful interest in maintaining the finality of the original decision.
9.	In his careful and detailed skeleton argument on behalf of the claimant, Mr Sachdeva set out the principles that the court will normally apply in deciding whether or not it is right to extend the three‑month time limit.  While I accept that in general terms those principles are of assistance, it should be observed that, so far as I am aware, there is no case which suggests that it would be appropriate, some years after the event, for the court to grant permission for judicial review in respect of an earlier decision simply upon the basis that that earlier decision can be said to be legally erroneous in the light of a subsequent decision of a higher court.  In the normal course of events the court is concerned with more mundane causes of delay: failure to apply for public funding in sufficient time, failure to seek legal advice, failure to act promptly on a perceived error of law, and so on and so forth.  The authorities do not deal with the underlying question of principle that arises when it is sought to challenge some years after the event an earlier decision simply in the light of a subsequent decision in another case.
10.	Looking at those factors, therefore, the delay in this case is very substantial.  The decision is being challenged very nearly three years after the event.  In my judgment, the fact that the law was subsequently declared to be otherwise than that assumed to be by the coroner in 2005 does not amount, for the reasons that I have given, to a good reason to extend time.
11.	Standing back and looking at the matter more generally, one would of course have regard to the importance of the point of law at stake.  However, it seems to me that in so far as there is a point of general importance it has arisen in the Smith case.  Without wishing to prejudge what the Court of Appeal might say in the appeal against Collins J's decision, it is highly unlikely that the court will not express a view, even if only obiter, as to the correctness or otherwise of the broad proposition which Mr Sachdeva seeks to derive from Smith.  Thus it seems to me that in so far as there is any issue of general public importance, it is likely to be dealt with in the Smith case.
12.	So far as the other matters are concerned, the strength of the claimant's challenge, I am prepared to accept that if Collins J is correct then it is certainly arguable that the coroner adopted a wrong approach back in 2005.
13.	Looking at matters of hardship and prejudice to third parties or detriment to good public administration, while there is no detailed evidence (and perhaps one would not expect it at this stage) as to hardship or prejudice, there is a very obvious detriment to good administration if those who are aggrieved by the outcome of inquests are able to challenge them some years after the event on the basis of a change of the law as declared by a judge in a subsequent case.  One speaks generally of the desirability of finality in litigation, but if there is any kind of hearing that is intended to produce some form of closure it must surely be a coroner's inquest.  It does seem to me that it would be highly undesirable in principle for such an inquest to be reopened after such a lapse of time, unless there were very compelling reasons to do so.
14.	It is relevant to consider in this context that the inquest in respect of the claimant's son, Corporal Dewi Pritchard, was held together with the inquests into the deaths of two other soldiers, Staff Sergeant Wall and Major Titchener, all three of whom sadly died in the same incident.  It seems to me inevitable that in so far as those families have achieved a measure of closure as a result of the inquest, that closure would be undone were the inquest into one of the three who died to be reopened.  For many of those concerned, giving evidence at an inquest will be a particularly traumatically experience and to have to relive that experience some years after the initial inquest is something that the court should be astute to avoid if at all possible.
15.	Thus it does seem to me that there are powerful public policy reasons for not permitting this kind of belated challenge to an inquest which was accepted at the time as being lawful, and is only now arguably unlawful because of a subsequent decision in another case.
16.	For these reasons, I endorse, perhaps only at greater length, the observations of His Honour Judge Michael Kay QC, sitting as a deputy judge of this court, when he refused permission on the papers on 4th September 2008.
17.	Thank you very much.
18.	MR SHARLAND:  My Lord, one very minor matter.  At the beginning I think you referred a letter from the coroner dated 5th October, it was actually a file note of a telephone conversation of the same date.
19.	MR JUSTICE SULLIVAN:  Thank you.  Shorthand writer, would you kindly rewrite history to that effect.  Thank you very much.
20.	No further applications I assume?  Do you want a detailed assessment for legal services funding?
21.	MR SACHDEVA:  My Lord, if I could, yes.  Thank you very much.
22.	MR JUSTICE SULLIVAN:  Yes, you may certainly have that.  In front of witnesses, Mr Sharland, I give you back your White Book.  It is very important to have corroborative evidence that this occurred.
23.	MR SHARLAND:  Thank you, my Lord.
24.	MR JUSTICE SULLIVAN:  Thank you both very much indeed.
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