Tomanovic & Ors v Foreign and Commonwealth Office

The Court of Appeal (Simler LJ) dismissed an application under CPR 52.30 to re-open this court's earlier refusal of permission to appeal against Johnson J's order of 5 December 2019 which had entered summary judgment for the Foreign and Commonwealth Office. The application to re-open failed because the applicants did not establish the high threshold in CPR 52.30: it was not necessary to avoid a real injustice, the circumstances were not exceptional and there was an alternative (finality of litigation) remedy.

The judge below had concluded that the claimants lacked extraterritorial jurisdiction under article 1 of the European Convention on Human Rights (the "public powers" gateway), that the acts of the secondee (Mr Ratel) were not attributable to the United Kingdom, and that the proceedings were an abuse of process on the Henderson v Henderson basis. Those conclusions supported summary judgment and, on the facts found, could not be shown to have been reached as a result of any relevant procedural irregularity or other error warranting re-opening.

Background and parties: The claimants are relatives of people killed or abducted in Kosovo in 1999–2000. They sued the Foreign and Commonwealth Office (FCO) alleging breaches of the obligation to investigate under section 6 of the Human Rights Act 1998 read with articles 2 and 3 of the European Convention on Human Rights. The claim depended on establishing UK responsibility for the acts or omissions of Mr Ratel, who had been seconded to the EULEX Special Prosecution Office in Kosovo.

Procedural history: Johnson J heard the FCO's summary judgment application and on 5 December 2019 entered summary judgment for the FCO. Permission to appeal was refused by McCombe LJ (initial decision 27 February 2020, reviewed 11 December 2020). The claimants applied under CPR 52.30 to re-open the refusal of permission to appeal. Simler LJ heard that application.

Issues before the court: (i) whether the exceptional, high-threshold jurisdiction to re-open a final determination under CPR 52.30 was made out (principles from Taylor v Lawrence, Lawal and Wingfield); (ii) whether Johnson J had been wrong on key issues so as to give rise to real injustice — specifically whether the claimants could show extraterritorial jurisdiction under article 1 ECHR (the "public powers" gateway), whether Mr Ratel's acts were attributable to the UK, and whether the proceedings were an abuse of process.

Court's reasoning and decision: The court applied the established restrictive test for reopening: there must be exceptional circumstances and a powerful probability that a significant injustice has occurred and that reconsideration is the only effective remedy. Simler LJ concluded that McCombe LJ had grappled with the issues and that Johnson J's conclusions were supportable on the facts: EULEX exercised command and control at theatre level and the FCO did not exercise operational direction or control over Mr Ratel's prosecutorial functions; therefore the UK did not exercise extraterritorial jurisdiction in Kosovo for the purposes of article 1 and Mr Ratel's acts were not attributable to the UK. The judge's finding that the present proceedings were an abuse of process (Henderson v Henderson) was also sustainable. Allegations that Johnson J had relied on "secret" material or otherwise committed a procedural irregularity were not established and, even if there had been reliance on material not fully argued, there was no realistic or powerful probability that the outcome would have been different. The application to re-open was dismissed.

Application to re-open refused (appeal to re-open dismissed). Simler LJ held that the CPR 52.30 threshold was not met: there was no real injustice to be avoided, no exceptional circumstances and there was no realistic probability that the earlier decision would have been different. The judge’s core findings — no extraterritorial jurisdiction under article 1 ECHR, no attribution of Mr Ratel’s prosecutorial acts to the UK, and that the proceedings were an abuse of process — were sustainable on the facts and law.

Appeal from Johnson J (High Court of Justice, Queen's Bench Division) judgment dated 5 December 2019 (summary judgment for the FCO). Permission to appeal refused by McCombe LJ (initial decision 27 February 2020, reviewed 11 December 2020). Application under CPR 52.30 to re-open that refusal was dismissed by Simler LJ in the Court of Appeal, [2021] EWCA Civ 117.