A2/2004/2525
Neutral Citation Number: [2005] EWCA Civ 400
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
The Strand
London

Monday, 14 March 2005

B e f o r e:

THE  MASTER  OF  THE  ROLLS
(Lord Phillips of Worth Matravers)

LORD JUSTICE WALLER

and

LORD  JUSTICE  MAURICE  KAY

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JOHN  BOTHAM
Appellant

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MINISTRY  OF  DEFENCE
Respondent
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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
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MR F REYNOLD QC and MR P MEAD (instructed by Messrs Simpson Millar, Wimbledon SW19) appeared on behalf of THE APPELLANT

MRS WENDY ALTWAITE (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT
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J U D G M E N T
Monday, 14 March 2005

THE MASTER OF THE ROLLS:  We make it plain that, in giving leave to appeal to the House of Lords, we are not inferentially finding that the decision is wrong, we are simply reflecting the fact that their Lordships have themselves given leave to appeal in what is essentially a carbon copy case.  
 
MR REYNOLD:  Yes.  
 
THE MASTER OF THE ROLLS:  We are simply applying a leap-frog remedy.   

MR REYNOLD:  Yes.  
 
THE MASTER OF THE ROLLS:  Very well.  This appeal will be dismissed by consent, but the application for leave to appeal to the House of Lords will be granted for the reasons that we have expressed.  
 
MR REYNOLD:  I am grateful to your Lordship.  Whether this is an appropriate moment or not I do not know, the appellant is legally aided.  I am not sure whether the usual order would apply, notwithstanding that the appeal has been dismissed as it were by consent?  
 
THE MASTER OF THE ROLLS:  Mr Reynold, we are inclined to think that the appropriate order would be that costs should follow the result in the House of Lords, but you would need a legal aid taxation.  

MR REYNOLD:  Yes, I am very grateful.  

	ORDER: (Not part of judgment)	

	Appeal dismissed by consent; leave to appeal to the House of Lords granted; costs to follow result of appeal; community legal services assessment of appellant’s costs.