Tomanovic & Ors v Foreign and Commonwealth Office

The power to reopen a final permission decision is residual and exceptional. Under the Civil Procedure Rules 1998, r 52.30, the applicant must show real injustice, exceptional circumstances and no alternative effective remedy. The earlier process must have been critically undermined, with a powerful probability of a different outcome. A wrong decision, fresh evidence or an important legal point is insufficient. The absence of a remedy for established human-rights breaches does not itself justify reopening where the underlying claim would fail on independent grounds. Alleged procedural defects must be material and capable of changing the result.

Family members of persons killed or abducted in Kosovo brought claims against the Foreign and Commonwealth Office concerning the alleged failure of a prosecutor seconded to Kosovo to investigate the offences. Johnson J entered summary judgment for the FCO on 5 December 2019, finding no sufficient United Kingdom jurisdiction, no attribution of the prosecutor’s conduct to the United Kingdom, abuse of process through re-litigation, and no compelling reason for a trial. Permission to appeal was refused by Johnson J and by McCombe LJ on the papers, whose decision was reviewed on 11 December 2020. The issue before Simler LJ was whether the refusal of permission should be reopened under CPR 52.30 because the earlier process had been critically undermined and reopening was necessary to avoid real injustice.

1. Application dismissed. CPR 52.30 confers a residual jurisdiction to reopen a final determination, including a refusal of permission to appeal. The jurisdiction is subject to exceptional and restrictive conditions, reflecting the public importance of finality in litigation. The principles in Taylor v Lawrence, Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514, Goring-on-Thames Parish Council v South Oxfordshire District Council [2018] EWCA Civ 860 and R (on the application of Wingfield) v Canterbury City Council [2020] EWCA Civ 1588 were adopted and applied.
2. The court must identify a powerful probability that significant injustice has occurred, that the integrity of the earlier litigation process was critically undermined, and that the decision would probably have been different absent the defect. On an application concerning refusal of permission, the court first asks whether the permission judge grappled with the issues. If so, only an exceptional mistake which corrupted the process and probably affected the result can justify reopening.
3. No real injustice was established. The findings of human-rights panels concerning breaches of articles 2 and 3 did not require the claim to proceed where the underlying claims had no real prospect of success and a trial would have produced the same result. The alleged reliance by Johnson J on material not put to the parties was not shown to be material. Nor did McCombe LJ’s failure to address every ground serially demonstrate that he had failed to understand the appeal or corrupted the process.
4. There was no arguable error in the jurisdiction analysis. Under article 1 of the European Convention on Human Rights, the public-powers gateway fell within state-agent authority and control and required the exercise of public powers through the consent, invitation or acquiescence of the territorial government. The secondment of a prosecutor to an international mission, without United Kingdom power or actual direction and control over his prosecutorial functions, did not establish United Kingdom jurisdiction. Drozd and Janousek v France and Spain (1992) 14 EHRR 745 was a helpful analogy, not a basis for reopening.
5. The attribution challenge also had no real prospect. The EULEX Joint Action transferred operational control to the EULEX chain of command. EULEX exercised command and control at theatre level, while residual disciplinary powers retained by the seconding state did not confer operational control over prosecutorial conduct. The analysis in FCO and others v Bamieh [2019] EWCA Civ 803 supported that conclusion.
6. The abuse-of-process finding was also unarguable. Applying the broad merits-based approach associated with Henderson v Henderson, the claimants could and should have raised the connected case concerning the same underlying events in Kontic and others v MoD [2016] EWHC 2034. The application to reopen therefore fell well short of CPR 52.30.

• Court of Appeal (Civil Division): Simler LJ dismissed the application under CPR 52.30 to reopen the refusal of permission to appeal.
• Court of Appeal (Civil Division): McCombe LJ refused permission to appeal on the papers on 27 February 2020 and maintained that decision on 11 December 2020, directing an oral hearing before another Lord or Lady Justice.
• High Court of Justice, Queen’s Bench Division: Johnson J entered summary judgment for the Foreign and Commonwealth Office on 5 December 2019, bringing the claims to an end, and refused permission to appeal.