Tovey & Ors v Ministry of Justice

A consolidated test claim may not be discontinued without the court’s permission where other claims have been joined to it. The court should control discontinuance so that group litigation is not derailed, while protecting individual claimants from being bound by an unargued case.

Section 3 of the Human Rights Act 1998 cannot be used to interpret a statutory prohibition on prisoner voting as conferring a power to enfranchise prisoners. Section 3 of the Representation of the People Act 1983 therefore remained effective, although incompatible with Convention rights because its ban was blanket. Section 6(6) of the 1998 Act also prevented a damages claim based on failure to introduce amending legislation. A declaration remained legally arguable but was difficult to justify where an equivalent declaration already existed.

The claim formed part of a large cohort of claims by serving prisoners seeking damages and declarations arising from their exclusion from voting at the May 2010 General Election. The claims were consolidated in the High Court, with Anthony Tovey’s claim designated as the lead case.

Mr Tovey discontinued. The court held that, following consolidation, permission was required under CPR rule 38.2(2)(c), and permitted discontinuance while substituting Paul Hydes as lead claimant. Mr Hydes refused to attend court and had no legal representation. The court proceeded in his absence because he had been given a reasonable opportunity to participate, the issues were principally legal, and safeguards existed for other claimants.

The defendant sought strike-out or summary judgment. The central issues were whether the statutory prisoner voting ban could be interpreted compatibly with Article 3 of the First Protocol and whether failure to amend the legislation gave rise to a claim for damages.

1. Discontinuance and conduct of the test claim. Consolidation meant that Mr Tovey was no longer the sole claimant for the purposes of CPR rule 38.2(2)(c). Permission was therefore required. It was granted because compelling an unwilling and unrepresented claimant to present the case would be unjust, while another claimant could take the lead.
2. The hearing could proceed in Mr Hydes’s absence. Article 6 and common law required a reasonable opportunity to attend, not an absolute right that the hearing occur in the claimant’s presence. He had refused that opportunity. The issues were legal and the other consolidated claimants could show cause if the judgment overlooked an arguable point.
3. Interpretation of the voting legislation. The interpretative obligation in section 3 of the Human Rights Act 1998 was strong, but had limits. Reading section 3(1) of the Representation of the People Act 1983 as making a sentenced prisoner legally capable, rather than legally incapable, of voting would reverse the statutory wording and change the substance of the provision. It was impermissible interpretation, not reading down.
4. The domestic authorities, including Chester v Secretary of State for Justice and Wakefield Metropolitan District Council and Smith v Scott, supported that conclusion. The blanket ban was incompatible with Convention rights because of its breadth, but that did not mean that all prisoners were entitled to vote pending legislative reform. Parliament retained a margin of appreciation in defining the category of prisoners who might be enfranchised.
5. Damages and declaration. Section 6(2) of the Human Rights Act 1998 prevented a claim based on enforcing primary legislation where the public authority could not have acted differently. Section 6(6) excluded failure to introduce or make primary legislation from the statutory concept of an unlawful act. The failure to amend the legislation therefore did not support damages. The European Court’s approach in Hirst v United Kingdom and Greens & MT v United Kingdom also made compensatory damages very unlikely. A declaration was arguable but difficult, since a declaration had already been made in Smith v Scott.
6. The claim disclosed no reasonable grounds and had no real prospect of success. It was struck out. Each claimant was ordered to contribute £76 towards the defendant’s costs, subject to showing cause within four weeks. Mr Tovey’s contribution was assessed at £50 because he had discontinued.

First-instance decision. The judgment records no appeal from an earlier decision.