No C/2000/3497
Neutral Citation Number: [2001] EWCA Civ 768
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL DECISION TO
REFUSE JUDICIAL REVIEW

								Royal Courts of Justice
								Strand
								London WC2

								Wednesday, 2nd May 2001
B e f o r e:

LORD JUSTICE JUDGE

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WYKHAM

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR S ISAACS QC and MR L LEWIS (Instructed by Barker Gotelee of Martlesham Hall, Ipswich) appeared on behalf of the Appellant

The Respondent was not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE JUDGE: This is a renewed application for permission to move for judicial review following an adverse decision given by Mr Justice Richards on 10th November 2000. On that day he refused an application made by Mr Wykham and the Quarantine Association lodged on 2nd August 2000 to quash the decision of the Ministry of Agriculture, Fisheries and Food communicated by a letter dated 9th May 2000, refusing to pay compensation or provide financial assistance for quarantine kennel owners following the introduction of the Pet Travel Scheme, introduced on 22nd December 1999 and which came into force on 17th January 2000.
2.	For the purposes of this application I have considered a skeleton argument produced by counsel for the Ministry who had attended the hearing before Mr Justice Richards. The essential point of his decision was that the minister's decision was made and communicated not, as the applicant asserted, on 9th May 2000, but by a letter dated 8th October 1999 following correspondence on the topic during the previous months. Mr Justice Richards therefore rejected the application in essence on the basis that it was significantly out of time and had been the subject of protracted delay.
3.	As to the history, there was a request for the introduction of a compensation scheme as long ago as July 1999. That was declined by the Ministry on 25th August 1999. The essence was that there would be no money to pay decommissioning grants and, as a matter of principle, governments did not compensate for loss of business, or only did so in very exceptional and limited circumstances. The solicitors then acting for the applicants wrote on 14th September, seeking elucidation of the August 1999 letter and said in terms:
“From this letter it is not clear to me whether this is a refusal to pay compensation whatsoever or whether it is a rejection of the proposed scheme to manage the transition of the old quarantine regime to the new one.
You will appreciate that it remains the association's case and they have a claim under the European Convention on Human Rights and that there is a strict time limit upon this claim. It would therefore be very helpful if you could answer this inquiry as a matter of urgency.”
4.	The answer came on 8th October. It asserted that the previous ministerial letter of August 1999 had -
“made it clear that the Governnment would not compensate quarantine kennel owners for any loss of business that might arise before or following the introduction of the Pet Travel Scheme. Furthermore, there is no money available to help finance the decommissioning scheme proposed by your client.
MAFF does not accept that the introduction of the Pet Travel Scheme will infringe any rights which quarantine kennel owners may have under the European Convention on Human Rights or that the Convention entitles them to any compensation.”
5.	Mr Isaacs QC, in the course of his submissions, has asked me to consider it at least arguable that the letter dated 8th October did not represent a final decision. In particular, it could not represent a final decision in relation to a pet travel scheme which had not at that stage been introduced and was being spoken of as a future event. Accordingly, to have taken proceedings for judicial review at that stage would have been premature and might have been met with the argument that his client should wait and see what the pet travel scheme produced when eventually introduced and brought into effect.
6.	I find that argument interesting, although it does rather fly in the face of the apparently unqualified assertion that the government would not compensate quarantine kennel owners following the introduction of the Pet Travel Scheme. Mr Isaacs also submitted that his client was not obliged to take the view that the letter did represent a final decision.
7.	The pet travel scheme then came into force, as I have indicated, and there was then further correspondence.
8.	Mr Wykham wrote personally on 2nd March asking for further information because the pet travel scheme did not provide for the payment of any compensation to owners of quarantine kennels:
“Our members would be grateful if you could let us have details of the criteria you have applied, your reasons why you believe that they are not applicable to us, and accordingly, your reasons for not paying decommissioning grants or compensation. In view of the fact that the majority of us are about to lose our livelihoods and investment and that you have always promised a reasoned response and a fair hearing, we believe that our request is not unreasonable.”
9.	It seems fairly clear to me, but does not matter one way or another, that the plain purpose of writing that letter was to see whether in the decision-making process any material might be revealed to demonstrate that the decision was susceptible to attack under judicial review proceedings.
10.	It is fair to say that the reply took, in the context, a fairly long time to arrive, and only followed a reminder in April. So two months after the letter dated 2nd March came the response, what Mr Isaacs on behalf of Mr Wykham contended, was the “decision” letter. It said in terms that the government had to take into account the need to achieve a balance between the individuals affected and the general public interest and that there were many factors which had to be examined. Some of those were identified. The letter went on to point out that the decision-making process had involved some analysis of the rights, such as they would be, available to Mr Wykham in the European Court of Human Rights, in other words, the consequences of the Convention. So, that letter having been received, the application for judicial review was made at the end of July or the beginning of August.
11.	Mr Isaacs submits that whatever the position may have been in relation to the letter of 8th October, it is further arguable that the decision of 9th May represented a further or fresh decision following the introduction and bringing into force of the relevant scheme and analysis by the Minister of such rights as Mr Wykham and the Association may have under the Convention. In effect, now that the Convention had been taken into account it was open to his client to advance a Convention argument which would not have been available to him in October 1999. He submits that if the Convention had properly been taken into account then his client's case, at least arguably, should succeed on the basis that the refusal of compensation in this scheme constitutes non-compliance or breach of Article 1 of the First Protocol of the Convention. He reminds me - not in the spirit of trying to terrorise me - that if this application were to be refused, then domestically speaking that would be an end of all possible remedies available to Mr Wykham. The next court in which to achieve the objective that he says justice should produce, namely compensation, would be the European Court.
12.	I am not in any way terrorised by that argument. Either the case is one that should be considered at a full hearing or it is not; if it is not, so be it, that is an end of it here.
13.	I must confess that when I read the papers I formed precisely the same view as Lord Justice Mantell had when he refused the application. Having reconsidered the papers in the light of the arguments deployed before me orally by Mr Isaacs, I have come to the conclusion that this case may raise a serious issue about the effect of Article 1 of the First Protocol in the context of the refusal of compensation. Without in any way deciding whether the Convention should apply, so to speak, retrospectively in the present context, it appears plain that the Ministry purported to give consideration to the effect of Article 1. It therefore follows, in my view, that it is arguable that there is an Article 1 point to be considered.
14.	As to the delay, it still seems to me that the analysis by Mr Justice Richards was very powerful.
15.	I am prepared to accept however that it is arguable that the decision of 8th October was not a final decision, that arguably it was premature for the scheme to have been attacked before it was ready, and that the decision of 9th May arguably constituted a fresh decision. In those circumstances I conclude that this application should go to a full hearing before the Administrative Court.
16.	I should make it clear that I have not extended time or dealt with the issue of delay save in the course of considering Mr Justice Richards' conclusion. It will be for the judge hearing the application to come to whatever conclusion he thinks appropriate on the basis of all the facts as developed before him, as to whether or not this application, if otherwise justifying an order for judicial review, is nevertheless either time barred or a case in which relief should be refused on the ground of delay.
Order: Application allowed