Ashton & Ors v The Ministry of Justice

Relief from a procedural sanction requires the court first to consider whether the underlying claim has a real prospect of success. In these claims, that required an arguable distinction from the lead decision on prison sanitation. A different prison, a higher rate of system failures, personal motivation, or additional discomfort did not create a material distinction without evidence of a materially different regime or suffering approaching the high threshold required by article 3. Article 8 is not an automatic alternative where article 3 is not engaged; it has distinct criteria. Where the claimant was in default of a case-management order and the claim remained unarguable, relief from sanction was refused.

Five serving or former prisoners applied to reinstate claims against the Ministry of Justice concerning sanitation regimes at HMP Albany and HMP Long Lartin. The claims had been stayed pending two lead cases concerning similar prison conditions. After those cases were dismissed, the claimants were ordered to identify any material distinction and failed to do so adequately. Their claims were consequently struck out. Each claimant sought relief from that sanction, relying on alleged differences in prison regimes, system failures, medical conditions, personal circumstances, or the effect of using a bucket.

The central questions were whether each claim was materially distinguishable from the lead cases and had a reasonable prospect of success, and, if so, whether relief from sanction should be granted.

1. Disposition. The applications for relief from sanction in all five actions were refused. Each claim therefore remained struck out.
2. Under CPR rule 3.9, the court had to consider all the circumstances, including efficient and proportionate conduct of litigation and enforcement of compliance with rules and orders. Applying Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, the starting point was that the sanction had been properly imposed unless the order or default was successfully challenged.
3. The court first considered whether each claimant would have been permitted to continue even if in time. The claim had to be distinguishable from the lead cases and have a reasonable prospect of success. If it did not, the application necessarily failed.
4. The alleged differences did not meet that threshold. There was no evidence that the Long Lartin regime was materially different from the Albany regime, or that any higher rate of Night San failures produced suffering approaching the article 3 threshold. Personal motivation, a back condition raised only at the hearing, anxiety, alleged psychiatric effects, religious difficulties, and complaints about the facilities did not establish an arguable claim without supporting evidence or timely complaint to the prison.
5. The requirement to use a bucket was not, by itself, degrading treatment contrary to article 3. The threshold required a high level of suffering. The article 8 claims also failed: failure to meet the article 3 threshold did not automatically engage article 8, and the claimants had not shown a substantial interference with private life.

The judgment was a first-instance determination of applications for relief from sanction. It records that earlier lead claims concerning comparable sanitation regimes had been dismissed and that permission to appeal had been refused. The present applications were then determined by the High Court.