Neutral Citation Number: [2013] EWCA Civ 783
Case No: B2/2012/2933
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Wood QC
OLV 20334
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/07/2013
Before:

LORD JUSTICE MOSES
LORD JUSTICE RIMER
and
LORD JUSTICE AIKENS
- - - - - - - - - - - - - - - - - - - - -
Between:

	Thomas James Smart	Appellant	
	- and -		
	The Forensic Science Service Limited	Respondent	

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr Pete Weatherby QC (instructed by Broudie Jackson Canter) for the Appellant
Mr Daniel Squires (instructed by The Treasury Solicitors) for the Respondent

Hearing dates: 10th-11th April and 5th June 2013 
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Moses: 
1.	The appellant, Thomas Smart, appeals against the order of His Honour Judge Wood QC on 18 May 2012.  HHJ Wood QC struck out the appellant’s claim for negligence and breach of the Human Rights Act 1998.  For the purposes of striking out the appellant’s claim, certain factual allegations contained in the particulars of claim of 10 March 2010 must be assumed.
2.	On 9 January 2008 police searched the claimant’s home at 100 East Lancashire Road, Liverpool L11, for drugs, which they believed had been kept there by the claimant’s brother.  During the search they found what appeared to be a live bullet and arrested the appellant on suspicion of possession of live ammunition pursuant to s.1(1) of the Firearms Act 1968.
3.	The appellant told the police in interview that he had bought the bullet as an ornament at a car boot sale and had assumed that it was not live.  Whether it was a live bullet or not could not be discerned from visual examination and the police, having charged the appellant, sought to make good their case by sending what appeared to be a live bullet to the defendant for scientific analysis.  The defendant was a company, all of whose shares were held by the state.
4.	On 30 May 2008 a forensic scientist employed by the defendant, Philip Rydeard, produced a witness statement pursuant to s.9 of the Criminal Justice Act 1967.  The witness statement gave a laboratory reference and described the “receipt of items”.  It read:-
“Laboratory records show that on 19 February 2008 the following item was received at the Northern Firearms Unit from the Merseyside Police:
PG1 cartridge – 100 East Lancashire Road, L9.”
The expert described the item as a bulleted cartridge.  He dismantled the cartridge and found it contained the required components of ammunition designed for use in self-loading pistols and sub-machine guns.  He classified the cartridge PG1 as ammunition for the purposes of s.57(2) of the 1968 Act.
5.	The appellant was then charged and pleaded guilty, since s.1(1) of the 1968 Act is an offence of strict liability.  He was sentenced to four months’ imprisonment, suspended, with a requirement to undertake 180 hours of unpaid work.
6.	On 23 January 2009 the Merseyside Crown Prosecution Service told the claimant’s solicitors that, following an internal review carried out by the Forensic Science Service, the item recovered from the appellant was not in fact ammunition.  The letter made the suggestion that the appellant should invite the Magistrates’ Court to re-list the case pursuant to the provisions of s.142 of the Magistrates’ Court Act 1980 with a view to the conviction and sentence being set aside.  It said the Crown Prosecution Service would support that application and offer no evidence.  It concluded:-
“As I am sure you will appreciate, the proceedings were brought against your client in good faith, based upon the evidence presented to the Crown Prosecution Service by the Forensic Science Service.”
7.	The letter dated 23 January 2009 enclosed a letter from the Forensic Science Service dated 9 January 2009.  The relevant parts of the letter dated 9 January 2009 signed by the General Manager of the Forensic Science Service read:-
“I would like to inform you of a quality issue that has arisen at the NFU with regard to two Merseyside cases which require the classification of ammunition.
On 19 February 2008 two cases, each comprising a single round of ammunition, were received at the Northern Firearms Unit (NFU) from Merseyside Police.  One case was assigned FSS laboratory reference number (300735613 [40104862]) and the other (300735611 [40104860]).
300735611		
Division	Lower Lane Police Station, Liverpool North Area E	
Officer in case	Constable 8975 Mahoney	
Number of items received:	1	
Details re items:	PG1, labelled as ‘1 x bullet inside blue wash bag’	
Requirement:	Classification of bullet	
Suspect:	Thomas Smart, DOB 28/08/1987	
Other:	URN number – 05E60221908; date of offence 09/01/08; drugs related; suspect said he bought as an ornament from a car boot sale	
300735613		
Division:	Admiral Street, Liverpool South Area F	
Officer in case:	DC 2153 Smith	
Number of items received:|1		
Details re items:	PR1, labelled as ‘1 bullet’	
Requirement:	Classification of bullet	
On 28th March 2008 the OIC for 300735611 (bullet in blue wash bag) contacted NFU to check on the progress of case.  The officer was informed that the case had not been started and the delivery date would be the 19 May 2008.  The officer said he would call at the end of April for an  update.  On 30th May 2008 the OIC contacted NFU regarding the status of 300735611 and it was agreed that the case would be progressed that day.
On 30th May 2008 the case was allocated to a Reporting Officer who carried out an examination of an item which was believed to be the exhibit relevant to that case and a report was prepared, posted and faxed to the OIC.
The conclusion was that the cartridge constitutes ammunition as defined in section 57 (2) of the Firearms Act 1968 and is subject to the provisions of Section 1 of this Act.
However, the item reported under laboratory reference 300735611, was an exhibit bearing the affidavit PR1 and assigned the laboratory reference number 300735613.  This exhibit relates to the other case from Merseyside received at the NFU the same day and not case reference number 300735611.
When the correct item PG1 from laboratory reference 300735611 was examined on 8th January 2009, it was found to be a dummy round.
I would like to offer my sincere apologies for this quality failure and assure you that a full and thorough internal investigation is currently underway.  The Forensic Science Service appreciates that this failure has taken some time to come to light and that there is the potential for a miscarriage of justice to have occurred.  It is for this reason that despite our internal investigations being at any (sic) early stage that we considered it appropriate to bring this matter to your immediate attention.”
8.	On 6 February 2009, as suggested by the Crown Prosecution Service, an application was made to the Magistrates’ Court pursuant to s.142 of the Magistrates’ Court Act 1980, the plea was vacated, the CPS offered no evidence, and the charge was dismissed.  This had the unfortunate effect, not realised at the time, that this appellant fell outwith the statutory scheme for compensation (see s. 133(1) and (5) Criminal Justice Act 1998).  Neither side advanced any submission before us that the statutory scheme was relevant to the issues of immunity.   Proceedings were then launched in the Liverpool County Court with the particulars of claim dated 10 March 2010.  At that stage, there was no further information as to how a bullet had been wrongly attributed to the claimant.  The claim merely referred to the letter from the Crown Prosecution Service dated 23 January 2009 as indicating “that there had been a mix-up of exhibits between two unconnected cases…”.  The claim alleged negligence:-
“8.	The defendant owed the claimant a duty to operate proper systems to ensure that the continuity of exhibits was secure, and that expert reports actually related to the exhibits referred to in those reports.  The defendant knew that the claimant had admitted possession of the said bullet, and that errors in continuity could lead to miscarriages as occurred in the instant case, and dire consequences such as damage to reputation and loss or restriction of liberty.
9.		The actions and omissions of the defendant breached the aforesaid duty.  Particulars of negligence:
(a) The defendant failed to maintain a proper system to ensure the continuity and integrity of exhibits.
(b) The defendant failed to ensure that the bullet seized from the claimant’s home was the same exhibit as was examined by Mr Rydeard and referred to his report under the same exhibit reference.”
The particulars of claim also alleged that the defendant had violated the appellant’s Article 8 rights.
9.	The defence dated 2 July 2010 admitted the alleged “mix-up” but denied that the Forensic Science Service Limited owed any duty of care, and asserted that Mr Rydeard, an employee of the respondent, was immune from civil proceedings as a witness, and that no duty of care was owed to suspects or witnesses by the police in relation to the investigation of crime or third parties employed to assist the police.  It also denied that the defendant was a public authority “within the meaning of s.6(1) of the Human Rights Act 1998”.
10.	On 10 December 2010 the defendant applied to strike out the claim and on 19 January 2011 to stay the proceedings, pending the hearing of the strike-out application.
11.	The judge, in a full judgment dated 12 February 2012, held that the respondent was protected by witness immunity which covered both the negligence and the claims pursuant to the Human Rights Act 1998, that the respondent owed the appellant no duty of care and was not a public authority for the purposes of the Human Rights Act.  The appellant then appealed.
12.	By the time the judge heard the respondent’s application to strike out the appellant’s claim, further documents had been disclosed on 3 March 2011.  These showed that the original draft statement of Philip Rydeard gave the same laboratory reference number, 300735611, as the statement which was subsequently served but where the served statement refers to PG1 cartridge, the draft refers to the PR1 cartridge and, although it is difficult to see, someone has written in hand the exhibit number PG1 above the typed exhibit number PR1.  Where the typed address reads 100 East Lancashire Road, L19, beneath the postcode L19, someone has written in hand the code L9.  No explanation for the difference between the draft statement and the final statement has ever been forthcoming.
13.	A packaging sheet under the box showing item number seems to show an exhibit number overwritten by PG1, crossed out, and then the exhibit number PR1 underneath.  An ammunition examination sheet seems again to show PG1 overwritten, crossed out, and the exhibit number PR1 written underneath.
14.	The only explanation for these handwritten alterations is contained in a document dated 14 January 2009 which is headed “Investigation into P1 NFU action – Reference CO1911”, and under the heading “Casefile 300735611:-
“1.	Movement of items on back of casefile is not fully documented.  There is no exhibit reference number present and also no year present in the date column.  It is common practice to write “all” under the item column.
2.		A photocopy of the exhibit bag was on file but this had only been added after the draft statement had been reviewed and is not common practice at the NFU.
3.		On the packaging sheet, TF1 128, the item number was originally documented as PR1.  This was overwritten as PG1 and then crossed out, PR1 was later written in red.  On the ammunition examination sheet, TF1 127, the exhibit was also originally documented as PR1, overwritten as PG1 and then crossed out, PR1 was again later written in red.  The amendments were not signed and dated.
4.	Draft statement refers to ‘PR1. Cartridge – 100, East Lancashire Road, L19’.  The file reviewer has put a question mark next to this information, written PG above PR1 and amended the postcode to L9.  This doesn’t correspond to the MGFSP, which describes the item as ‘PG1, 1 x bullet inside blue wash bag, East Lancashire Road L9’, nor to the packaging ‘PR1, 1 x Bullet.’
5.	The tag number referred to on the packaging sheet (FA116551), is different to the tag number on the MGFSP (FA15264).
Interview with RO, Phil Rydeard
The overwriting of exhibit numbers and the strikethrough referred to in point 3 were carried out by the RO.  He also amended it to PR1 in red ink and further made a comment on the MGFSP ‘PR1 on bag’.  He believed this was done after the draft statement was reviewed.
The RO believes he photocopied the exhibit packaging after the draft statement was reviewed in order to show the reviewer the item reference number.
The item was reported in the final statement as PG1, which was the correct exhibit reference relating to the case but this was not the reference of the item which was examined.
RESTRICTED:  Staff
The file reviewer was offsite during the investigation and was therefore not available for questioning.
Interview with SDTL, Ben Astley
In August/early September 2008, Ben was conducting an audit of the stores in order to update the firearms register.  He noticed that the item PG1 from 300735611 was present in the stores when the OMS record indicated that the item had been returned to the customer on 27th June 2008.  He asked the CSD SDC to request the exhibit which had been returned under 300735611 back from the customer.
On 23rd September 2008, the item previously returned to Merseyside under lab reference 300735611 was resubmitted in a crate, along with other items which were required for defence examination.  The items relating to the defence exam were booked onto OMS and the firearms register updated accordingly.  The item resubmitted under lab reference 300735611 was not booked in and there is no electronic record for the resubmission of this item, therefore the SDTL was unaware that the exhibit had not been resubmitted.
No follow up action was taken by the team leader to check why the genuine item relating to 300735611 was still in the stores.”
15.	Counsel instructed by the Treasury Solicitor frankly admitted that this provides no adequate explanation as to what happened, still less why it happened.
16.	At this appeal the appellant challenged all three conclusions of the judge.  But after one and a half days’ argument, he sought, to some extent prompted by the court, to amend his particulars of claim so as to allege deceit.  We were compelled to grant an adjournment so that the appellant could draft his proposed amendment and to afford the respondent a proper opportunity to make submissions about it.  A further hearing was arranged.
17.	The relevant parts of the proposed amendment read:-
“6A	Records relating to the bullet examined by Mr Rydeard for the purposes of preparing the aforesaid 30 May 2008 report had been altered by an employee, servant or agent of the defendant, or several of them, to incorrectly show that it was the dummy bullet seized from the claimant’s home.
…
10A	The claimant was deceived by a misrepresentation of fact which appeared in the final version of Mr Rydeard’s 30 May 2008 report, that the live bullet that formed the subject matter of the report was the item seized from the claimant’s home.  The claimant acted to his detriment in reliance on the misrepresentation.
PARTICULARS OF DECEIT
Mr Rydeard and /or an employee, servant or agent of the defendant, or several of them:
(a)	Altered exhibit records relating to a live bullet, to falsely represent that it was the dummy bullet seized from the Claimant’s home.
(b)	Altered the exhibit reference in the final 30 May 2008 report to show the reference of the dummy seized from the Claimant’s home, PG1, instead of the reference of the actual bullet examined, PR1, which appeared in the draft report.
(c)	Knew that the representations were false, or were recklessly indifferent to their truth.
(d)	Knew or were recklessly indifferent to whether the misrepresentations on the exhibit records would be repeated in the 30 May 2008 report.
(e)	Intended or knew that the Claimant would act on the findings of the said report to his potential detriment.
10B	The Claimant did rely on the misrepresentations of fact by pleading guilty to the charge, and the said deceit thereby caused the Claimant loss, injury and damage.
PARTICULARS OF INJURY AND DAMAGE
(a)	the particulars at paragraph 10 are repeated.”
18.	In its response to the proposed amendment the Forensic Science Service Limited accepts that it has not been able to provide a satisfactory explanation of how the report dated 30 May 2008 came to state incorrectly that the bullet found at the appellant’s home contained live ammunition.  It accepts that it cannot assert that the appellant has no proper basis for pleading deceit although it does not accept that the claim is made out in law or in fact.  But it does contend that the proposed amendment fundamentally alters the basis upon which the claim is brought.  It says that the documents on which the deceit allegation is founded were disclosed more than two years ago, on 3 March 2011, and it is far too late to make such an amendment now.  Further, it maintains its objection to the original claim and contends that even if the court allows this late amendment, the allegations of negligence and breach of the Human Rights Act, 1998 should remain struck out as the judge ordered.
19.	There was no dispute as to the principles which this court should apply in relation to late amendments.  The court must strike the balance between the prejudice which will be caused to the appellant if the amendment is refused against the prejudice to the Forensic Science Service Limited.  It may not be possible to compensate the resisting party by an award of costs.  The later the application is made, the more difficult it will be for the applicant to establish that justice demands permission to make the amendment.  The court must also take into account the public interest in the efficient administration of justice which may be damaged by the disruption and delay caused by late amendments (see White Book at 17.3.7, Worldwide Corporation v GPT Limited [1998] EWCA Civ 189 (pages 11-13), Swain Mason v Mills & Reeve [2011] 1 WLR 2735 (paragraph 72) and the useful summary of Hamblen J in Brown v InnovatorOne [2011] EWHC 3221 [5]-[14]).
20.	It must be recalled that the application for an adjournment came right at the end of the argument in relation to the appeal and over two years after the documents on which it was based.  No good explanation was advanced as to why it was not made shortly after the documents to which I have referred were revealed.  Even though they are, largely, incomprehensible the stark fact was revealed that someone had altered the exhibit numbers, had made no note at the time of the alteration as to why it was necessary to alter those numbers, and had concealed the fact of those alterations in the statement that was served on the defendant and his legal advisers.  The application for an amendment should have been made shortly after those documents were disclosed and, certainly, well before the hearing in the Liverpool County Court.  
21.	The Forensic Science Service Limited contends that it has been prejudiced in a way which cannot be compensated in costs.  It points out the events on which the allegations are based occurred nearly five years ago.  It says that it could have provided evidence as to the systems operated at the material time but responding to “specific factual allegations of falsifying records is quite different”.  It argues that had the amendment been made earlier it would have been in a “considerably better position” to produce evidence.
22.	The Forensic Science Service Limited adduces no evidence as to whether those responsible for altering the records and producing the final witness statement are still available or not.  If, as I will charitably assume, the alteration of exhibit numbers is a rare event, one might have expected whoever is responsible to remember it.  All the more so since the alteration was not disclosed in the final written statement.  Without any evidence from the witnesses responsible for what at this stage appears a grave state of affairs, I cannot assume that the absence of explanation is due to delay in applying for the amendment.  The respondent has not given any explanation as to why there is no contemporaneous note of the reasons for the manuscript alterations of exhibit numbers or why those alterations were concealed in the written statement served on the appellant.
23.	In those circumstances, as the court has already announced, I would grant permission to amend in the terms proposed.
24.	It remains necessary, however, to decide the question whether the judge’s order striking out the claim for negligence and under the Human Rights Act should be maintained.  For that purpose I should deal with the basis upon which the judge struck out those claims.
25.	First, the judge concluded that the evidence relating to the collection, transmission and examination of exhibits was protected by witness immunity.  This conclusion was based upon the decision of Drake J conferring immunity in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 and the distinction between Evans and  Darker v Chief Constable of the West Midlands Police [2001] AC 435 in which the House of Lords refused immunity.    In Evans organs removed from a dead child had been, so it was alleged, negligently contaminated with morphine, leading to a false charge of murder.  In Darker, police had allegedly planted evidence.  Two features in Darker are of significance in this appeal.  First, absolute immunity is in principle inconsistent with the rule of law and the protection it affords must not be given any wider application than is absolutely necessary in the interests of the administration of justice (see Lord Cooke, page 435D-E).  Second, there is no immunity which covers the fabrication or creation of evidence in circumstances where that fabrication is never intended to appear in any statement, (see, e.g., Lord Cooke at 454C and Lord Hutton at 466F).
26.	The paradigm circumstance which falls within the protection of witness immunity is the giving of evidence by a witness in court.  This has been extended to the preparation of evidence with a view to it being adduced, whether or not the witness is to give evidence (see Lord Hutton 463G-465E).  The rationale for the immunity is: first, the need to protect witnesses from the fear that they will be harassed by subsequent actions against them.  The immunity is designed to encourage freedom of speech and communication in judicial proceedings (see Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208).  Second, the immunity is designed to prevent a collateral attack being made on the decision in which the allegedly false evidence was given (see, e.g., Lord Clyde, 461D-E).
27.	Now that we have allowed the amendment, the rationale for conferring witness immunity has gone.  First, witnesses, if called by the respondent, will have to explain and justify the handling of the exhibits in this case.  They cannot be protected from being questioned or from accounting for their actions.  Second, now that the allegations of deceit are to be fully aired, the immunity serves no purpose because it will not prevent a collateral attack.
28.	In Darker their Lordships gave differing reasons for declining to extend the immunity to what was alleged to be the fabrication of evidence.  It is, no doubt, for that reason that the respondent accepts that the documents now disclosed afford a proper ground for alleging deceit and that in those circumstances, apart from the resistance to the amendment, they accept that the new allegation should not be struck out.  If, as a result of this court’s ruling, the trial continues on the basis of the allegations of deceit, then it does not seem to be wise to strike out the allegations of negligence.  The boundaries between those circumstances in which an immunity can be conferred and those where it will not depend upon the facts.  As Lord Cooke envisaged:-
“Each category of immunity requires separate consideration and justification, while each set of facts requires full examination in determining whether it can be brought within a particular category.” (454G) 
29.	Some of the reasons given in the speeches in Darker justify keeping the claim for negligence alive.  Not all of their Lordships founded their conclusion upon the distinction between negligence and fraud.  Lord Hope, for example, noted that the allegations referred to things done by the police “during the initial stage when they were acting as investigators”.  He did not think that it could be asserted, without hearing the evidence, that the allegations fell within the boundaries of the immunity (450B).  Whilst agreeing with the conclusion, Lord Mackay did not think that Drake J’s decision in Evans extended the immunity to “alleged negligent conduct not reflected in a written report or statement” (451G).  For those reasons, I would not strike out a claim in negligence.
30.	For similar reasons, I do not think it appropriate at this stage to uphold the judge’s view that no duty of care was owed.  All the more so since, as Lord Cooke, following Lord Hoffman, thought that Evans’ case might be decided on the ground that the defendants owed the plaintiff no duty of care (454D).  The judge took the view that no duty of care was owed by a forensic scientist, an employee of the respondents.  In the light of the amendments now made, I think it would be wrong to exclude the proposition that whoever it was who interfered with the correct exhibit number, whether it was the forensic examiner or not, owed a duty to the person to whom the bullet would be attributed as a result of interference with the exhibit number.  
31.	It must be recognised that as a result of interference with the exhibit number the real bullet was falsely attributed to this appellant.  The effect of interference with the exhibit numbers, whether it was designed originally to conceal confusion or “mix up” or not, was the same as planting the real bullet in the appellant’s premises.  It is alarming that the course of justice appears to have been perverted by the alteration of exhibit numbers and the failure to disclose that that had occurred or any reason why it occurred.  I suggest any court would be most reluctant to allow immunity to be deployed in a way which prevents these matters being litigated.  All the more so when the suggestion that the matter be rectified in the Magistrates’ Court removed any right of statutory redress.
32.	It is unlikely that the Human Rights Act claim will need resolution.  But in the light of the continuation of the claim on other grounds it seems to me wrong that the question whether the respondent was a public body or not should rest upon summary judgment without any full examination of the facts.
33.	For those reasons, without the need for any searching analysis of the distinction between Evans and Darker or full examination of the reasons given for the distinction in the speeches in the House of Lords, I would allow the amendment and uphold the appeal.  If my Lords agree with my conclusions, then we will consider written arguments in relation to directions and costs.
Lord Justice Rimer:
34.	I agree with both judgments.
Lord Justice Aikens:
35.	I agree. Mr Squires, for the respondent, accepted that the proposed amendments alleging deceit were properly pleaded and could not be struck out on the ground that they did not raise an arguable case.   In the absence of any evidence whatsoever as to why this amendment would cause irremediable prejudice to the FSSL,  I cannot accept the submission Mr Squires made that these amendments should not be permitted because it is now too late.  After all, his case has not got beyond the stage of an attempt to strike out the claim. It is not like many of the decisions to which we were referred, (including that of Brown v InnovatorOne) which concern an attempt to amend during the trial itself. 
36.	Once that amendment is allowed, the trial of the deceit claim will have to go ahead unless it is settled in the meantime.  As my lord has pointed out, the precise scope of the immunity of witnesses, which may have seemed clear at the time Evans was decided, is no longer so as a result of the five speeches of their Lordships in Darker, which lay different emphasis on different factors.  The present case is not the right one to analyse and define the outer limits of the immunity, because I suspect that, as a result of Darker, whether there is immunity or not will depend on the precise facts of a particular case.  We must not prejudge what will be found when the facts are investigated here. To the riposte that such an approach undermines the purposes of granting immunity in the first place I would give the same answer as Lord Hope of Craighead gave in Darker at 446C-D.  The general principle must be that where there is a wrong there is a remedy and immunity is a derogation from a person’s right of access to a court which requires to be justified.  A justifiable boundary has to be drawn somewhere, but it cannot be drawn when you do not know the terrain.
37.	The next question, that is, whether the respondent can owe the appellant a duty of care so as to found any claim in negligence, must also depend on the facts. As Mr Squires accepted, the issue here must be whether it is “fair just and reasonable” to impose such a duty, because the requirements of foreseeability of damage and proximity can readily be satisfied.  Whether it is fair just and reasonable to impose a duty of care must depend on the facts, in particular the nature of the body “The Forensic Science Service Limited” and what precisely happened to the bullet and how it came to be mislabelled.  They are all going to be investigated in any event as a result of the amendment pleading deceit.
38.	As for the Human Rights Act claim, the key issue (assuming that there is no immunity) is whether the FSSL is a public body or not.  It is not clear to me, on the facts we have, which side of the line it falls on.  That also needs investigation.
39.	For those reasons I would allow this appeal.