Kaplan, R (on the application of) v Appeal Adjudicator, Enemy Property Claims Assessment Panel & Anor

A non-statutory compensation scheme must be applied according to its terms. Judicial review cannot require payment of interest or inflation uplift where the executive scheme provides only for repayment of the confiscated sum. Property validly vested under the Trading with the Enemy Act 1939 could not be reclaimed by asserting ownership against the Custodian, and the European Convention on Human Rights could not retrospectively invalidate conduct lawful when undertaken. A requirement that a claimant suffered Nazi persecution by a relevant enemy state was not satisfied merely because Soviet persecution was facilitated by, or followed from, Nazi Germany’s agreement with the USSR.

The claimant challenged an Appeal Adjudicator’s dismissal of his appeal from decisions of the Enemy Property Claims Assessment Panel. The claims concerned money confiscated during the Second World War from Moses Kaplan, Boris Baksht and a business owned by them, and later repaid in part under the Baltic States Scheme.

The claimant sought an inflationary uplift or interest under the Enemy Property Payments Scheme, alternatively under the Baltic States Scheme. The central issues were whether the earlier payments had settled the claims only in part, whether the claimants had suffered Nazi persecution by a relevant enemy state, and whether the confiscation and non-payment of interest engaged Article 1 of the First Protocol to the Convention.

1. The application failed. The Adjudicator’s decision was not unlawful and permission to appeal was refused.
2. The effect of vesting property under section 7 of the Trading with the Enemy Act 1939 was governed by Bank Voor Handel en Scheepvaart N.V. v Administrator of Hungarian Property [1954] A.C. 584. The original owners could neither sue the Custodian nor assert a continuing right to the confiscated property. Any restoration, and any additional payment for interest or inflation, depended upon the executive or Parliament.
3. The Baltic States Scheme was non-statutory and was not made under the Foreign Compensation Act 1969. Its terms therefore did not entitle the claimant to interest or an inflationary uplift. The executive had chosen to repay the original nominal sums, and the court could not substitute a different policy.
4. The requirement in paragraph 12(ii) of the Enemy Property Payments Scheme that the claimant have suffered Nazi persecution was not met. Deportation by the USSR of persons regarded as bourgeois businessmen was not Nazi persecution merely because the Ribbentrop-Molotov Pact had enabled or preceded the Soviet action. Nor was Germany the relevant enemy state: the persecution was carried out by the USSR, which had not been declared an enemy state under the 1939 Act.
5. The Adjudicator’s alternative conclusion that the previous claims had been settled in full was not finally determined. The court expressed reservations and indicated that a more generous interpretation might have been possible, but the point was unnecessary because the claim independently failed on the Nazi-persecution requirement.
6. The Human Rights Act 1998 did not retrospectively render unlawful conduct which was lawful when undertaken. Article 1 of the First Protocol could not assist where the claimant lacked the necessary possessory rights in the confiscated property.

• Enemy Property Claims Assessment Panel: rejected the claims in whole or in part.
• Appeal Adjudicator: dismissed the claimant’s appeal from the Panel’s decision.
• High Court (Administrative Court), [2004] EWHC 485 (Admin): dismissed the judicial review application and refused permission to appeal.