United Kingdom Supreme Court

The proceedings

“This Convention shall cease to apply to any person falling under the terms of section A if: …

(5)       He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality ...”

“To summarise, therefore, in cases such as these, all that the claimant has to do is to prove that he was detained. The Secretary of State must prove that the detention was justified in law. She cannot do this by showing that, although the decision to detain was tainted by public law error … a decision to detain free from error could and would have been made.”

“57.     Applying the approach in Lord Dyson JSC’s judgment in Lumba … to the present case, both the deeming decision under section 3(5)(a) and the decision to make a deportation order under section 5(1), although authorised by statute, were made ‘in breach of a rule of public law’. The sole basis for both decisions was the unlawful 2004 Order. This error was sufficient to render those decisions unlawful, but did it bear upon, and was it relevant to, the decision to detain under paragraph 2(2) of Schedule 3?

58.       I have not found this an easy question to answer. As a matter of first impression, the answer to the question is obvious: the unlawful decisions under sections 3(5)(a) and 5(1) did bear upon and were relevant to the decision to detain: without the prior decisions there could have been no decision to detain. But this approach does not pay sufficient regard to the statutory scheme as a whole. Making a deportation order is a two-stage process. First the Secretary of State must serve notice of the decision to make a deportation order. The notice explains that there is a right of appeal under section 82(1) against the decision, and sets out of (sic) the grounds of appeal under section 84(1). Those grounds are not limited to the ground that removal in consequence of the decision would be unlawful under the Refugee Convention or the ECHR, they enable the person served with the notice to challenge the lawfulness of the notice on the basis of any breach of a rule of public law: ‘that the decision is otherwise not in accordance with the law’ … If there is an appeal the Secretary of State may not proceed to the second stage of the process - the making of the deportation order - until the appeal has been finally determined …”

And at para 62 Sullivan LJ said:

“… It would frustrate the operation of the statutory scheme if the Secretary of State was not able to rely upon the tribunal’s decision, dismissing an appeal, once time for applying for permission to appeal against the decision had expired, as a lawful basis for making a deportation order.”

“Where notice has been given to a person in accordance with regulations under section 18 of this Act of a decision to make a deportation order against him … he may be detained under the authority of the Secretary of State pending the making of the deportation order.”

Kennedy LJ said that “all that is required by paragraph 2(2) of Schedule 3 in order to make detention legitimate is the giving of a notice of intention to make a deportation order”. Millett LJ similarly said that “[w]here the requirements of that paragraph are satisfied, the detention is lawful and no claim for false imprisonment can be maintained”.

Conclusion

LORD CARNWATH:

Introduction

“60.     … There will, however, be some cases where appeals are allowed by the tribunal on the basis that there was a breach of a rule of public law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the detention unlawful … It must, however, be acknowledged that it is difficult to identify any principled basis for distinguishing between those public law errors which will render the decision to detain unlawful and those which will not. Errors of law are many and various and, as Lord Dyson said in para 66 of Lumba:

‘The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires …’

61.       The statutory scheme does not provide any mechanism for challenging the lawfulness of the kind of decision that was in issue in Lumba: an (unlawful) decision to detain where there had been a (lawful) decision to make a deportation order/the making of a (lawful) deportation order. The lawfulness of such a decision can be challenged only by way of judicial review. In sharp contrast, Parliament has established a comprehensive statutory scheme for determining the lawfulness of a decision by the Secretary of State to make a deportation order. The Secretary of State may not make the order until an appeal against the decision to make it has been ‘finally determined’…”

There was, he thought, a “very strong case” for treating the tribunal’s decision under section 82(1) (subject to appeal to the Court of Appeal) as determinative of the issues as between the parties, “in order to ensure finality in litigation and legal certainty”, and so as not to “frustrate the operation of the statutory scheme” (paras 61 and 62).

“… pursuant to the apparently lawful 2004 Order made by the Secretary of State following the procedure specified in section 72 of the 2002 Act, including placing the Order before Parliament …

… I do not consider that the analysis is invalidated because the same actor, the Secretary of State, made both the 2004 Order and the deportation order. In making both orders, the Secretary of State was acting under statutory powers but the power to make the 2004 Order was distinct from the power that then arose to make a deportation order in reliance on it.” (paras 81 and 82)

The arguments in the present appeal

Discussion

“It is built on the perception that while unlawful administrative acts (the first acts) do not exist in law, they clearly exist in fact. Those unaware of their invalidity (the second actors) may take decisions and act on the assumption that these (first) acts are valid …” (Wade and Forsyth Administrative Law 11th ed, pp 251-252; see also footnote 145 for a list of judicial citations.)

Finality, res judicata and issue estoppel

The authorities

“It is well established that a statutory body cannot by contract fetter its own freedom to perform its statutory duties or exercise its statutory powers and by parity of reasoning it has been held that no such fetter can arise from an estoppel by representation … But the rationale which underlies the doctrine of res judicata is so different from that which underlies the doctrine of estoppel by representation that I do not think these authorities have any relevance for present purposes.

The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims ‘interest reipublicae ut sit finis litium’ and ‘nemo debet bis vexari pro una et eadem causa’. These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.” (p 289)

He distinguished between issues of law or fact, such as, in that case, whether there had been a material change of use, and issues of planning judgement which would arise under other grounds of appeal, in respect of which members of the public would have the right to attend any public inquiry and to be heard as objectors against the grant of planning permission.

“The second species, which I will call ‘issue estoppel’, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.” (p 198)

“30.     Although it is well established that the parties cannot by agreement or conduct confer upon a tribunal a jurisdiction which it does not otherwise have, the question in this case is whether an actual decision by a tribunal that it has jurisdiction can estop the parties per rem judicatam from asserting the contrary. Neither Buxton LJ nor Rimer J cited any authority which decides that it cannot. The law on this point is not at all trite. Although estoppel in pais and estoppel per rem judicatam share the word estoppel, they share very little else. The former is based upon a policy of giving a limited effect to non-contractual representations and promises while the latter is based upon the altogether different policy of avoiding relitigation of the same issues. It is easy to see why parties should not be able to agree to confer upon a tribunal a jurisdiction which Parliament has not given it. And if they cannot do this by contract, it would be illogical if they could do it by non-contractual representations or promises. But when the tribunal has decided that it does have jurisdiction, the question of whether this decision is binding at a later stage of the same litigation, or in subsequent litigation, involves, as Sedley LJ explained in his dissenting judgment, quite different issues about fairness and economy in the administration of justice.

31.       Issue estoppel arises when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties: see Thoday v Thoday [1964] P 181, 198. The question is therefore whether the appeal tribunal was a court of competent jurisdiction to determine whether the Labour Party was a qualifying body within the meaning of section 12.”

“34.     … It is true that the severity of this rule is tempered by a discretion to allow the issue to be reopened in subsequent proceedings when there are special circumstances in which it would cause injustice not to do so: see Arnold v National Westminster Bank plc [1991] 2 AC 93. As Lord Keith of Kinkel said, at p 109, the purpose of the estoppel is to work justice between the parties …”

In the instant case he thought it would be unjust not to apply the rule, against the background that the claimant had been involved in a lengthy and expensive hearing, during which the merits had been fully examined, and that it would be quite unfair for him to have to start again in the County Court.

“In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result …” (p 109)

“If a judge has made a mistake, perhaps a very egregious mistake, as is said of Walton J’s judgment here, and a later judgment of a higher court overrules his decision in another case, do considerations of justice require that the party who suffered from the mistake should be shut out, when the same issue arises in later proceedings with a different subject matter, from reopening that issue?” (p 109)

He concluded that justice required an exception to the rule, against the background of Walton J’s erroneous decision and refusal of a certificate allowing an appeal:

“I consider that anyone not possessed of a strictly legalistic turn of mind would think it most unjust that a tenant should be faced with a succession of rent reviews over a period of over 20 years all proceeding upon a construction of his lease which is highly unfavourable to him and is generally regarded as erroneous …” (p 110)

The parties’ submissions on res judicata

i)                   A lack of formal pleadings in judicial review proceedings;

ii)                There being no lis between the named parties in the judicial review proceedings that is being determined;

iii)              The lack of finality in the determination of the judicial review proceedings, as in many cases the relief leaves the redetermination of the underlying dispute to the original decision-maker;

iv)              The discretionary nature of judicial review relief;

v)                 The fact that, in judicial review, there is always a third party who is not present: the wider public or public interest, which should not be prejudiced if the court on the first occasion does not have all of the relevant material and argument before it when deciding the first judicial review application;

vi)              The interaction between the acceptance and rejection of separate grounds in judicial review proceedings and the result of the application, with the consequent limitation on the ability of a successful party in judicial review to appeal in relation to grounds on which it was unsuccessful.

i)                   None of the judgments referred to by Mr Knafler went further than to express “doubts” on the question. More importantly in none of them was reference made to Thrasyvoulou, or in particular to Lord Bridge’s emphasis on the fundamental importance of the principle in both public and private law. I note, for example, Hale LJ’s statement in Munjaz (para 79) that “… issue estoppel is a doctrine appropriate to proceedings in private law” and contrasting judicial review where “there is always a third party who is not present: the wider public or public interest …”. It is very unlikely that she would have spoken in these terms if Lord Bridge’s words had been drawn to her attention.

ii)                Wade and Forsyth Administrative Law 11th ed (2014), p 201, in a section headed “Res Judicata”, states that res judicata plays -

“… a restricted role in administrative law, since it must yield to two fundamental principles of public law: that jurisdiction cannot be exceeded; and that statutory powers and duties cannot be fettered.”

However, it is accepted that within those limits the principle can extend to “a wide variety of statutory tribunals”, of which examples are given, including Thrasyvoulou. In the present context those principles do not pose an impediment; the tribunal had full jurisdiction to determine the legality of the detention, and there is no fetter on the Secretary of State’s exercise of powers in the future.

iii)              In any event, it is misleading to consider cases on judicial review generally. Although the present proceedings were brought by judicial review, the issues are the same as would have arisen in an ordinary common law action for damages for false imprisonment.

iv)              Mr Knafler’s suggestion as to the narrow scope of Thrasyvoulou is impossible to reconcile with the clarity and generality of Lord Bridge’s statement of the principle, with the support of the whole House. There is no reason why it should not apply in the present context where the statutory immigration appeal process is equally specialised and self-contained.

v)                 Lord Bridge’s words in Khawaja about the special protection for personal liberty were directed to imprisonment without trial. The issue here is not about DN’s personal liberty, but about the ordinary disciplines applicable to a common law claim for damages.

vi)              As regards the East Hertfordshire case, while I agree with Sullivan J that nothing said in Reprotech detracts from the authority of Lord Bridge’s statement of principle, the decision turned on its very special facts and gives no further assistance in the present context.

vii)            I agree with Mr Tam that the considerations which have led to doubts about the application of the principle in judicial review generally do not apply with the same force in the present context. However he seems to miss the point as to its potential application in this case. The relevant issue is not the seriousness of the crime, but the lawfulness of the decision to deport DN, and hence his detention, at the relevant time. That is the issue on which there was a definitive and “final” ruling in 2007, and which arises directly in his claim for false imprisonment.

Conclusion