UK - London Borough of Croydon v Y, Court of Appeal, 26 April 2016

Country of Decision:
Country of Applicant:
Date of Decision:
26-04-2016
Citation:
Case No: C2/2015/4330
Additional Citation:
Case No: C2/2015/4330
Court Name:
Court of Appeal (Civil Division) (before the Master of the Rolls, Lady Justice Macur and Lord Justice Lindblom)
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Headnote: 

The case considered an appeal by the London Borough of Croydon (“Croydon”) to have Y’s claim for damages for wrongful detention stayed pending the resolution of Y’s challenge to the assessment of his age undertaken by Croydon.

The Appellant submitted that the judge erred in holding that the principles in Starr v National Coal Board [1977] 1 WLR 63 (“Starr”) did not apply to this case. The Respondent argued that the Starr principles could not apply to this case. The Court upheld Croydon’s appeal, holding that the order sought by Croydon was reasonably necessary to enable it to defend the challenge to its age assessment and that Y had unreasonably refused to give his consent to the different age assessments applied for by Croydon. 

Facts: 

Y is a Nigerian national and claims he was born on 24 April 1999. Y claims that he was a victim of physical and sexual abuse in Nigeria and was trafficked to the United Kingdom. He was detained as an adult under the fast-track detention scheme and his asylum claim was refused. After being released from detention, Y was assessed by the Social Services of Croydon to be over 18 years of age. The assessment of his age was based solely on his physical appearance. Y brought judicial review proceedings against Croydon challenging the assessment. In proceedings which quashed the refusal of Y’s asylum application, Y made a claim for damages for wrongful detention. This claim was stayed pending the resolution of the challenge to the assessment of his age.

Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out, or stayed, unless Y consented to, and co-operated fully with, (i) a dental examination (including a dental X-ray), (ii) a psychiatric examination, and (iii) an age assessment by two Croydon social workers. The application was refused by UT Judge McGeachy on 8 December, who held that the Starr principles did not apply because (i) unlike this case, the plaintiff in Starr had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff, (ii) Starr was a private law claim, whereas the present case concerned a public law claim, and (iii) refusal of Croydon’s application was an appropriate use of his case management power to ensure the efficient disposal of the application.

Croydon appealed the decision to the Court of Appeal.  

Decision & Reasoning: 

The Court of Appeal rejected each of UT Judge McGeachy’s reasons for rejecting Croydon’s application on the basis that the Starr principals were applicable to the present case. As regards reason (i) the Court held that this concession was not essential to the court’s reasoning. The concession allowed the court to proceed on the basis that the medical examination was necessary for the proper conduct of the defence. However, without it the court would simply have had to decide for itself whether the examination was necessary. There was no concession in this case and so the judge had to decide whether the examinations proposed by Croydon were reasonably necessary for Croydon’s defence. Certain remarks in UT Judge McGeachy’s judgment, such as that a dental examination “might well have been useful, let alone the further age assessment to be carried out by Croydon”, suggested that the judge had done so and was satisfied that the dental examination and the examination by two social workers were reasonably necessary.

Regarding (ii) the Court held that in principle there is no reason to confine the Starr principles to private law litigation. He said that the reason that the Starr principles may not be applicable in public law cases is because in most judicial review litigation the court doesn’t hear oral evidence or make findings on disputed questions of fact. However, where, in judicial review claims, the court does hear oral evidence and is required to make findings of fact, there is no reason why Starr shouldn’t be applied. In the present case, the issue is one of fact, meaning that there is no reason to hold that the Starr principles do not apply, merely because the issue arose in public law proceedings.

Regarding (iii), the Court held that, by only saying in his judgment that Croydon’s application was “too draconian”, UT Judge McGeachy had not exercised his discretion as a case management decision on the basis that it would have been necessary to move the hearing date if he had made the order sought by Croydon. The Court accepted that, if the judge had decided that such an order would necessitate moving the hearing date, that could have been a good reason for not exercising his discretion to make the order (even if the other grounds for making it were made out). However, UT Judge McGeachy made no finding that the trial could not have started on its scheduled date if the order had been made. 

Outcome: 

Appeal granted.  

Observations/Comments: 

This case summary was written by Linklaters LLP.

Case Law Cited: 

UK - Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427

UK - Starr v National Coal Board [1977] 1 WLR 63

UK - Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964

UK - A v London Borough of Croydon [2009] EWHC 939 (Admin)

UK - R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557