R (Duke of Sussex) -v- SSHD
Order No: CA-2024-000936
In the Court of Appeal, Civil Division
23 May 2024
Before:
Right Honourable Lord Justice Bean
Between:
R (Duke of Sussex)
-v-
SSHD
………………………………………………………………………………………………………………………………………………………………………………………..
ORDER made by the Rt. Hon. Lord Justice Bean
On consideration of the appellant’s notice and accompanying documents, but without an oral hearing, in respect of an application for permission to appeal.
Decision:
1. Permission to appeal GRANTED on Ground 1 and the second part of Ground 2 (“analogous position”).
2. Permission to appeal REFUSED on the first part of Ground 2 (“irrationality”) and on Grounds 3, 4, and 5.
3. Application for expedition REFUSED.
Reasons
1. Although the carefully reasoned judgment of Sir Peter Lane may prove to be correct in all respects, I am persuaded, not without hesitation, that an appeal on Ground 1 would have a real prospect of success.
2. (a) The first sentence of Ground 2 argues that the judge should have found that RAVEC’s decision that its Terms of Reference did not apply to the Claimant because he was “outside the RAVEC cohort” was irrational. I agree with the Defendant that this argument is premised on the success of Ground 1. If Ground 1 succeeds this point adds nothing. If Ground 1 fails then this point cannot succeed. (b) The second sentence of Ground 2 is perhaps a slightly different way of putting Ground 1 (d), but for the avoidance of doubt I grant permission on that point.
3. Ground 3 is not at all persuasive. The judge found, as he was plainly entitled to do, that the Claimant had the ability to make representations as to how he should be treated. The main complaint is essentially that he was not supplied with the RAVEC Terms of Reference and invited to make representations about them. But again, unless Ground 1 succeeds, this leads nowhere. Moreover, the judge was plainly entitled to accept at paragraph 231, in the light of the evidence of Sir Richard Mottram which he cites, that on this aspect of the case the test in s 31 (2A) of the Senior Courts Act 1981 was made out.
4. Ground 4 is similarly unpersuasive. The potential impact of a successful attack on the Claimant was at the core of RAVEC’s deliberations. There is no prospect of the judge’s findings being disturbed on appeal. Ground 5 deals with costs. Of course if the Claimant were to succeed in his appeal on substantive grounds the issue of costs would have to be revisited generally. But as a free standing ground of appeal this is hopeless. The judge was exercising a broad discretion. The Claimant had failed to establish his case. The judge was best placed to form a view as to what deduction should be made from the costs payable to the Defendant because of the breach of the duty of candour. His reasoned decision on costs is unimpeachable.
5. As to expedition, I refuse the application made by Schillings in their letter of 30 April 2024 for an order that the appeal is to be expedited and heard by the end of the July. It is rightly not suggested that the Claimant is entitled to jump the queue because of his status. Two reasons are relied on. Firstly, the fact that we are now approaching three years from issue of the claim. That is correct, but I note that the claim was not issued until more than 18 months after the RAVEC decision of 28 February 2020. Secondly, it is said that the Claimant’s legal team will be engaged in a long matter from October 2024. Neither of these justifies the order which Schillings seek.