CO/1318/00

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL

B e f o r e

THE HON MR JUSTICE NEWMAN

BETWEEN

MARK WILKINSON FURNITURE LIMITED
Appellant

and

CONSTRUCTION INDUSTRY TRAINING BOARD
Respondent

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D W Mayall instructed by Rosenblatt, Solicitors for the Appellant

Mark Shaw instructed by CMS Cameron McKenna, Solicitors for the Respondent

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(Transcript of the Handed Down Judgment of
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Judgment
As Approved by the Court
Crown Copyright ©

Mr Justice Newman
1.	The appellant company, Mark Wilkinson Furniture Limited, are very well known as designers, manufacturers and installers of fitted units for kitchens and bathrooms.  The company regards its activities as being in the area of the design and manufacture of furniture.  Its business activity is predominantly, but not exclusively, the manufacture of fitted units for bathrooms and kitchens and the company installs the fitted units.  There is no doubt that the company is regarded as a furniture maker.  It has the Guild Mark of the Worshipful Company of Furniture Makers of the City of London.  It belongs to the British Furniture Manufacturing Association.  Its brochure puts emphasis on the originality of its design of furniture.  Notwithstanding such private and public perceptions of its activities, the respondent Board concluded that the activities of the company were such as made it liable for assessment to levy under the Industrial Training Levy (Construction Board) Order l999, Statutory instrument (S.I) No 159.  In short, the Board concluded that the company’s activities fell within the scope of the construction industry as defined in the relevant subordinate legislation.

2.	The company appeals to this court by virtue of Section ll(l) and Schedule l to the Tribunals Inquiries Act 1992 as amended.  A party to proceedings before an Employment Tribunal is entitled to appeal to the High Court “if dissatisfied in point of law”.  The procedural rules governing the appeal are the former rules of procedure set out in The Rules of the Supreme Court Order 55 Rule 3, which provides:

“3.1	An appeal to which this order applies shall be by way of a re-hearing and must be brought by originating motion.”

3.	The Employment Tribunal delivered extended reasons on 12 January 2000.  In paragraph 3 the Tribunal found the facts and there is no challenge to the facts as set out in that paragraph.

The correct legal approach to the appeal
4.	Counsel have agreed that the appeal is (i) by way of re-hearing, (ii) procedurally in accordance with Order 55, and (iii) on a point of law, but they have not been in entire agreement as to the approach which the court should adopt.  Mr Shaw for the respondent submitted, by reference to the cases, that although the appeal was by way of re-hearing, it being confined to a question of law, if the court concluded that two or more approaches to the meaning of the relevant statutory instrument were reasonable and that the Tribunal had chosen one which was reasonable, its decision should not be overturned.  Further, he submitted that the court should be slow to interfere with the meaning of the statutory instrument selected by the Tribunal and that deference should be paid to the expertise of the body appointed by Parliament to consider the issue.

5.	The challenge is to the following findings of fact made by the Board:

(1)	that the operations of the appellant company comprised the alteration of part of a building;

(2)	that the operations of the appellant company comprised the manufacture of built-in storage units, being articles wholly or mainly of wood;

(3)	that the activities of the appellant comprised wholly or mainly activities in joinery.

The precise terms of these conclusions of fact were dictated by the terms of the relevant statutory instrument which the Board had to consider, interpret and apply to the evidence, namely the Industrial Training (Construction Board) Order 1964 (Amendment) Order l992 No. 3048, which I shall refer to as the Construction Order.

6.	Following the approach enunciated by Viscount Simmonds in Edwards v Bairstow 1956 AC p.14, (one of the cases to which Mr Shaw referred) it was the task of the Board to ascertain the characteristics of the activities laid down by the Construction Order as comprising activities which were to be regarded as within the construction industry.  Having directed itself properly in accordance with the law, it was for the Board, having identified the characteristics, to apply them to the facts as they were before them, and to reach conclusions as to whether the activities of the appellant company fell within any of the activities defined in the Construction Order.  7.	Having regard to the existence of case law arising within the same statutory scheme as is under consideration here, I regard this court as bound to follow the approach laid down in Engineering Training and Industry Board v Foster Wheeler, John Brown Boilers, [1970] 1 WLR 881 and N.A.S. Airport Services Limited v Hotel and Catering Industry Training Board [1971] WLR 1576.

8.	In my judgment the cases establish:

(1)	that the appropriate process of interpretation should involve, and largely depends upon, “a cultivated and experienced impression”;

(2)	that an appellate court should proceed with care before disturbing the decision of the experienced Board to which Parliament has committed the decision;

(3)	that the process of interpretation should recognise the purpose of the legislation comprises “an endeavour ... to bring within general expressions and definitions which are rather fluid and loose in texture types of industry and industrial activity of a varied and complex character”;

(4)	that the scheme of the legislation has been designed with care so as to separate industrial activities and ensure that the relevant activity falls within the scope of only one statutory instrument and liability for assessment for levy according to one instrument;

(5)	that if there is an ambiguity the interpretation should not be strained against the taxpayer.

The decision
9.	The Industrial Training Levy (Construction Board) Order 1999 Statutory Instrument No. l59 provides that the Board has the power to impose the levy on a “construction establishment” which is defined as an establishment “engaged wholly or mainly in the construction industry ...”  The “construction industry” is defined as meaning any one or more of the activities which, subject to the provisions of paragraph 2 of the schedule to the Industrial Training Order (The Industrial Training (Construction Board) Order 1964 as amended), as are specified in paragraph 1 of that schedule as the activities of the construction industry.  Thus the legislative trail takes one to Schedule l to the Construction Order, which in its material parts provides as follows:

“1.1	Subject to the provisions of this schedule, the activities of the construction industry are the following activities insofar as they are carried out in Great Britain:-

(a)	all operations in -
	
	the construction, alteration, repair or demolition of a building or part of a building;

...

 ii	...
iii	...
		iv	...
		 v	...
		vi	...
	           vii	...
	          viii	the erection, repair or dismantling of walls, hoardings or 					scaffolding;
	           ix	...
		x	...

	(b)	....

	(c)	the manufacture of -

		i	doors, window frames, built-in storage units, stairs or curtain 				walling, being articles wholly or mainly of wood;
	           ii	bank, church or laboratory joinery or joinery of any other 					kind;
		
	(d)	the construction of shop, office or similar fittings on the premises on 	which they are 	to be installed, or the prefabrication elsewhere of such fittings by the employer 	engaged in the installation;

(e)	the erection or dismantling of exhibition stands;

(f)	.....
	
(g)	the preparation of stone for building purposes;

(h)	any activities (other than those above mentioned) being -

	 	 i	related activities incidental or ancillary to principal activities of 				the construction industry; or
		ii	activities undertaken in the administration, control or direction 				of one or more establishments, being establishments engaged 					wholly or mainly in principal activities of that industry ...”

10.	Paragraph 2 sets out a number of exceptions, the only material one being (ix), “the assembly, installation, cleaning or repair of venetian blinds”.  Paragraph 3 of the schedule is a definition schedule and it is to be noted “repair” is defined as follows:

	“Repair in relation to a building includes maintenance, repointing, redecoration and external cleaning;”

The Operations of the Appellant comprise the alteration of part of a building
11.	The Tribunal found that:

	(1)	a kitchen is part of a building;
	(2)	the activities of the appellant alter the rooms;
	(3)	the applicant’s units alter the kitchen;
	(4)	the alterations are fundamental to the nature of a kitchen and thus must 	be regarded as altering the kitchen.

The Board therefore concluded that the operations of the appellant altered a part of a building within the meaning of paragraph 1(a)(i) of Schedule l of the Construction Order.

12.	In my judgment the Construction Order required the Board to focus attention on the part or parts of the building affected by the appellant’s activity rather than the particular purpose which the particular part of the building was to serve.  An empty space comprising a room in a building may be radically altered so as to serve a purpose which it could not serve when empty, for example, by merely placing items within the room.  The relevant parts of a building which make up a room are the walls, ceiling and floor (doors and windows, by virtue of the Construction Order, are treated as part of a building).  The Board’s emphasis or regard to the extent to which the purpose to which the space would be put and would be comprehensively better served by the changes wrought from the introduction of the appellant’s units was, in my judgment, mistaken, for the relevant consideration was not the change wrought in connection with the purpose of the space but whether there had been an alteration to the building.  But this error in its approach does not necessarily point to its conclusion being wrong.  Plainly a wall is part of a building.  Plainly a wall is altered in its appearance by the installation of fitted kitchen units, but the appellant submits, so would the placing of a free-standing Welsh dresser against the wall, alter the appearance of the wall, but nobody would suggest that in so placing such a piece of furniture, part of the building was altered.

13.	In my judgment the Board was correct to concentrate upon the word “alteration” in paragraph l(a)(i), but as an aid in the meaning to be given to the scope of the operations covered by paragraph l(a), illumination is to be found in the definition of “repair”.  In my judgment a process such as fitting units, will render any repair by way of decoration or rendering or pointing to the primary structure of the wall impossible or unnecessary.  After the fitting of the appellant’s units the relevant surface for repair and decoration will be the units.  If the appellant is correct, the wall will not be repaired within the meaning of the Construction Order if the units are repainted.  I take this as a pointer to the meaning to be given to the concept of “alteration of a building”.

14.	Mr Mayall submitted that the appellant’s furniture is either fixed by means of screws to the existing building or is free-standing and therefore does not alter the fabric of the building.  He submitted that to equate ‘installation’ to ‘alteration’ amounted to an impermissible stretching of the language of the Construction Order.  Taken to its logical conclusion any installation activity would fall within the definition.  Thus the installation of a washing machine, or the fixing of a bookshelf to the wall, or a curtain pole, for example, would be a construction activity, and indeed the fitting of carpet would also be included.  He submitted that this could not have been the intention of the legislature.

15.	I do not take the Board to have decided that free-standing furniture altered a building.  Nor did it find that fixed free-standing furniture altered the building.  It drew a distinction, which arises in connection with paragraph l(c)(i) of the Construction Order, between fixing and fitting.  To that I shall come.  The Board submitted that the difference between fixing furniture and fitting units is a matter of fact and degree.  The answer as to whether it alters part of a building will depend upon the extent to which the part of the building is altered.  That in turn is to be determined by reference to the area of the alteration and the degree of permanence flowing from the change.

16.	Fitting a carpet to the floor of a building is, of course, the fitting of an item of furnishing rather than furniture, but whether fitted or otherwise, it is regarded as readily removable.  In contrast, the laying of a panelled wooden floor to an existing floor would be different and would amount to an alteration to the floor and thus an alteration to part of a building.  Again, fixing of panelling, whether complete or simply to dado height, would have the effect of altering the fabric of the wall and the appearance of the wall, and it would be fitted in such a way as to have a character of permanence so as to become part of the wall, and thus amount to an alteration to the wall.  In my judgment, so far as the Board concluded that the appellant’s activities involving the manufacture and installation of fitted kitchens and bedrooms fell within the Construction Order, it was correct.  It did not direct itself entirely correctly in insofar as it appears to have considered it to be a relevant characteristic of the scope of the activity that it resulted in the room being better suited to serve a purpose, but it came to the correct conclusion having regard to the meaning to be given to the words “alteration of part of a building”.

The operations of the Appellant comprise the manufacture of built-in storage units, being articles wholly or mainly of wood.  The Board’s reasoning

17.	The Board equated ‘built-in’ to ‘fitted’.  There was no dispute that the appellant’s units are properly described as fitted, and it was not contended that the items or furniture did not serve as storage units.  An argument that they were not made wholly or partly of wood was abandoned at the hearing in this court.

18.	The appellant relied heavily on the terms of the Furniture and Timber Industry Order (S.I. 1965 No.2028), now repealed.  Mr Mayall submitted that it was highly relevant and that the Tribunal had erred in ignoring it, or so far as it did pay any regard to it, concluding:

“We do not find that the terms of the l965 Furniture and Timber Industry Board Order assists us.”

The Furniture Order contained provisions demonstrating the effective dovetailing of it with the Construction Order, thus meeting the statutory purpose of avoiding activities falling within the scope of more than one Order.  Mr Mayall drew attention to the terms of paragraph l(h) of Schedule l to the Furniture Order:

“1.	Subject to the provisions of this Schedule, the activities of the furniture and timber 	industry are the following activities insofar as they are carried out in Great Britain:-

(h)	the manufacture or repair of any articles (including parts or components) wholly or mainly from wood, batten board, blockboard, chipboard, fibre building board, flax board, lamin board, plywood, veneer, cane, ocea, willow, wicker, straw, rushes, reeds or cork or any combination of those materials;

	(i)	the manufacture or repair of articles of furniture, cabinets, billiard tables 	or containers or cases for, or forming part of, musical instruments;”

He also relied upon the exceptions paragraph in Schedule l, which excluded from the activities of the furniture and timber industry:

(xiii)	any operations in the manufacture of prefabricated buildings or sections of buildings, doors, window frames, built-in storage units, stairs, curtain walling, or bank, church, laboratory or other joinery;

(xiv)	the construction of shop, office or similar fittings on the premises on which they are to be installed or, when carried out in conjunction therewith, the prefabrication elsewhere of such fittings;”

and finally, he relied upon the definition of furniture; 

(h)	furniture means furniture of a type commonly used for bank, church, domestic, education, garden, hospital, laboratory or office purposes, whether or not supplied for those purposes and whether designed to be free-standing or to be fixed to a building but does not include awnings, inside or outside, blinds, netting, tapestries, pictures or clocks;”

19.	He submitted, having regard, in particular, to the definition of furniture as being furniture, whether free-standing or fixed to a building, that any furniture designed to be fitted to a wall was not an activity within the scope of the Construction Order.  Further, he pointed to paragraph l(d) of the Construction Order, to the effect that “the construction of shop, office or similar fittings on the premises on which they are to be installed, or the prefabrication elsewhere of such fittings by the employer engaged in the installation”, which, he submitted, indicated that fittings having the characteristics of the types installed by the appellant could easily have been included within that paragraph, and the fact that they were not was to be taken as an indication that they were outside the scope of the order.

20.	In my judgment the meaning of the word ‘fitted’ as used by the appellant to describe its furniture cannot be equated with ‘fixed’.  Fitted furniture will be fixed but furniture which is fixed will not necessarily be fitted.  ‘Fixed’ when used in the Furniture Order is to be understood as being used in connection with furniture, where the shape and contour or design of the furniture has not been so significantly influenced or dictated by a need for it to cover completely, or nearly exactly, any part of a building.  It is the extent of the connection between the furniture being manufactured and the part of the building into which it will be installed, that determines whether a piece of furniture when placed in a building becomes part of it or is simply fixed to the building or free-standing in the building.  My attention was drawn to the definition of fitted in the Concise Oxford Dictionary.  It is as follows:

“Fitted	(1) made or shaped to fill a space or cover something closely or exactly (a fitted carpet), (2) provided with appropriate equipment, fittings etc. (a fitted kitchen), (3) built-in; filling an alcove etc. (fitted cupboards).”

21.	It is the degree and extent of its coverage of a part of a building which translates a mere fixing into a fitting.  Where such a fitting is wholly or mainly of wood it is regarded as an activity of construction.  I reject Mr Mayall’s suggestion that to be regarded as built-in it must be in an alcove and utilising some part of the wall of a building as part of the unit.  In my judgment the distinction cannot depend upon whether an inner frame is placed around an alcove or whether merely doors are put on the front of an alcove.  An inner frame on the alcove walls would be an alteration and the doors, without anything else, are within the Construction Order.  In my judgment the Board were right.  Further, deference should be paid to its experience and expertise in drawing the necessary distinction between ‘fixed’, ‘fitted’ and ‘built-in’.  In my judgment it was well entitled to conclude that ‘fitted’ equated with ‘built-in’.

The activity of the appellant comprised wholly or mainly activities in joinery
22.	Having regard to the inclusion within the definition of furniture in the Furniture Order of furniture supplied for “bank” and “church,” it is material to note that paragraph l(c)(ii) of the Construction Order is concerned with “an activity being the manufacture of .... bank, church or laboratory joinery or joinery of any other kind.”  Mr Mayall submits that the Board erred in law for it can be demonstrated that joinery includes the making of furniture.  Joinery is involved in the making of furniture, and thus “any other joinery” cannot possibly be extended to include joinery involved in the making of furniture, otherwise the exclusion in paragraph 2(xiii) of the Furniture Order has to be regarded as meaningless. He submitted that the apparent breadth of meaning of the words “any other joinery” had to be narrowed.  He submitted that it is clear from the two Orders that a distinction is drawn between joinery comprising components for the construction of buildings, (windows, doors or frames, storage units) and joinery in connection with the repair and manufacture of articles of furniture.  He submitted that having regard to the definitions in the Handbooks, and elsewhere, of joinery and its related skill, carpentry, carpentry is properly to be understood as concerned with building, whereas joinery is properly to be regarded as finer and more delicate finishing work.  In my judgment Mr Mayall is correct in his submission that the scheme of the legislation draws a distinction between joinery in connection with construction and joinery in connection with furniture.  If the Board had given the words ‘any other kind of joinery’ such a wide construction so as to include ‘joinery in connection with furniture’, it would plainly have misdirected itself as to the true meaning of the words ‘any other joinery’.  Both the Furniture Order and the Construction Order recognise that there can be furniture in a bank or church, but nevertheless contemplate that joinery in a bank or church are capable of being treated as different activities.  In my judgment it is plain that ‘any other kind of joinery’ cannot include ‘joinery in connection with furniture’.  Nor in my judgment can Mr Mayall be correct in his submission that the words ‘joinery of any kind’ must be limited to particular types of joinery, such as windows, doors, stairs or other articles incorporated into a building’s structure.  As Mr Shaw pointed out, doors and windows and other items incorporated into the structure are specifically provided for in the Construction Order.  In this regard it is noteworthy that the part of the Construction Order under scrutiny pays attention to the character or purpose of a building.  Paragraph 1(c)(ii) appears to be recognising that which is well known, namely that banks, churches and laboratories have particular joinery installed in connection with the purpose served by the building.  Thus installation in the nature of equipping a building, to serve a particular purpose, is under consideration.  In my judgment the considerations which lead me to conclude that the Board was correct are as follows:

(1)	that the character of the joinery or activity involving joinery included within paragraph 1(c)(ii) must be other than furniture or furniture which is fixed and have the character of being fitted in the sense of being built in, so as to become part of a building;  

(2)	that “any other kind of joinery” cannot extend to joinery in the nature of furniture;  but

(3)	includes joinery which upon a proper interpretation of the Construction Order is treated as a component part of a building or part of a building.

Thus in my judgment the appellant’s activities fell within this defined activity in paragraph 1(c)(ii) of the Construction Order.

Conclusion
23.	Had I not concluded that each of the activities as found by the Board fell within the Construction Order considerations may have arisen as to whether or not the activities of the appellant meant that the appellant was wholly or mainly engaged in activities within the scope of the Order.  Counsel kindly submitted to me after the close of argument their respective submissions in the event that it was necessary for me to consider the extent of the individual activities.  Having regard to the conclusions I have reached it is not necessary to deal with those submissions.  

For all the above reasons this appeal must be dismissed.

                                 Friday, 28th July 2000
 
MR JUSTICE NEWMAN:  For the reasons which appear in a draft judgment which has been distributed and in respect of which counsel have kindly supplied the court with corrections and comments, and thus now in accordance with a judgment which is handed down having taken account of those observations and comments, this appeal must be dismissed.
 
MR SHAW:  I invite your Lordship to dismiss the appeal with costs.
 
MR JUSTICE NEWMAN:  Yes, Mr Shaw.  I do not know whether you had an opportunity of seeing ‑‑ or both of you have had an opportunity of seeing ‑‑ the way in which I accommodated your observations?
 
MR SHAW:  Neither of us has. It is just on its way now.
 
MR JUSTICE NEWMAN:  Without elaborating on the matter, as to what I had obviously ‑‑ in an inaccurate recollection ‑‑ surmounted as acceptance by both of you as to a position, I have made it plain that that is not the case and dealt with it in another way.
 
MR SHAW:  I am very grateful.
 
MR JUSTICE NEWMAN:  As to, in particular, that part of the judgment which you obviously felt was slightly delphic, in dealing with fitted and fixing, I have elaborated upon it in order to better disclose my thought processes.  So putting it in that way, by way of summary, you will find the judgment has altered in those respects.
 
     Mr Mayall, what do you say about costs? You cannot resist it can you?
 
MR MAYALL:  There is nothing I can say as to the principle of costs.  This is in fact a matter in which your Lordship should summarily assess the costs, it being a matter listed for less than a day.
 
MR JUSTICE NEWMAN:  Am I in a position to do that? Have I figures and things?
 
MR MAYALL:  Schedules of costs have been served.
 
MR JUSTICE NEWMAN:   I do not have them in my mind or  before me at the moment.
 
MR SHAW:  It is the position that schedules have been exchanged.  My learned friend is right, your Lordship is not bound to do it ‑‑ and I am not encouraging your Lordship to do it given the list today ‑‑ but your Lordship is certainly in a position to and has power to.
 
MR JUSTICE NEWMAN:  Where are the schedules?
 
MR SHAW:  There is an alternative copy if they are not in the court file.
 
MR JUSTICE NEWMAN:  I can see one.  It is the respondents'.
 
MR MAYALL:  My Lord, it is the respondents' one which your Lordship will be concerned with.
 
MR JUSTICE NEWMAN:  I see.  It has been prepared since the judgment, is that right?
 
MR MAYALL:  I do not imagine so, no.
 
MR SHAW:  It was served just before the hearing.  As I understand it, it is required by the Rules.
 
MR JUSTICE NEWMAN:  I thought there was normally some counter‑schedule which I would have available from you.  In advance of the hearing there are normally two schedules because you do not know the result.
 
MR MAYALL:  My Lord, there should be two schedules.
 
MR JUSTICE NEWMAN:  It is sometimes an useful exercise to look at the other one and see how far you are apart.  Do you have your schedule there, Mr Mayall?
 
MR MAYALL:  I am afraid I have only the last page.
 
MR SHAW:  My Lord, I have a copy of my learned friend's.  I have only one copy but I am happy to let your Lordship have a look at it.
 
MR JUSTICE NEWMAN:  Yes.  Let me have a look at that. Thank you very much.
 
MR MAYALL:  Can I indicate I am not going to make many observations on the schedule?
 
MR JUSTICE NEWMAN:  Good.  What do you want to make  observations about?
 
MR MAYALL:  Just two points.  The schedule of the respondents' is obliged to set out the grade of fee‑earner.  I am not entirely sure, but I assume that the numbers in brackets before the fee‑earner ‑‑ at the top of the page ‑‑ are the grades, although normally it sets out "grade one", "grade 2" or whatever it may be.  Perhaps my learned friend could assist me on that ‑‑
 
MR SHAW:  Apparently, my Lord, the grades are not there.
 
MR MAYALL:  In that case, my Lord, can you go to page 3 of the schedule where it is set out that the grades should be there so that the figures, the appropriate hourly rates ‑‑ my Lord, the observation I would make is that I have no observations on the partner, Mr Marks, and his hourly rate; it is Deborah Walker, we do not know what grade fee‑earner she is.
 
MR SHAW:  My Lord, as I understand it, Ms Walker has one to two years of post qualification experience. That is the only light I can shed on it, I fear.
 
MR JUSTICE NEWMAN:  So she is grade 2.
 
MR SHAW:  That follows.  She is grade 2, yes.
 
MR JUSTICE NEWMAN:  Is that all right?
 
MR MAYALL:  I do not say anything further about it then.
 
MR JUSTICE NEWMAN:  All right.
 
MR MAYALL:  The only other matter I would raise ‑‑ it is somewhat embarrassing ‑‑ at page 3 ‑‑
 
MR JUSTICE NEWMAN:  I suspect Mr Shaw is used to this.
 
MR MAYALL: ‑‑ is the brief fee for a half day hearing.
 
     My Lord, on that schedule you see that my fee is estimated ‑‑ estimated completely wrongly ‑‑ but my Lord, I can say that it was exactly half Mr Shaw's brief fee.  My Lord, clearly the respondent is entitled to choose whichever counsel and pay that counsel whatever they wish to pay.  What they can not do is require the other side to pay more than reasonable fees a counsel would charge.
  
MR JUSTICE NEWMAN:  How many years call are you?  You are 1979, Mr Mayall?
 
MR MAYALL:   Yes.
 
MR JUSTICE NEWMAN:  Mr Shaw?
 
MR SHAW:  1987, my Lord.
 
MR MAYALL:  My Lord, in those circumstances I would invite your Lordship to say that the brief fee paid to me was reasonable in the circumstances ‑‑ I would be tempted to say miserly, but that would be against my clients' interests ‑‑ in my submission, it was a reasonable fee for a half day appeal.
 
MR JUSTICE NEWMAN:  Yes.
 
MR MAYALL:  Save for that ‑‑
 
MR JUSTICE NEWMAN:  Anything else?
 
MR MAYALL:  My Lord, no.
 
MR JUSTICE NEWMAN:  Mr Shaw, what would you like to say? Or would you like to seek representation?
 
MR SHAW:  I am not going to make intimate comments about my learned friend's brief fee.  Can I make global comments? In my submission, the schedule should be looked at globally.
 
MR JUSTICE NEWMAN:  Yes.
 
MR SHAW:  There are two observations.  First of all, the total is a relatively modest figure for a hearing that was pretty much one day as it turned out.  I have known costs in judicial review cases to far exceed that figure just by a permission hearing, let alone a substantive hearing.
 
     That is the first point I would make.  The second observation is that there is very little difference between the Board's costs and the costs the appellant would have been seeking from the Board had it won: a little under £12000 for the appellant, and a little over £13000 for the Board.  What I say about the components of that is that although the counsel's fees are higher in relation to the Board, the solicitors' fees are considerably lower, and that perhaps reflects the division of labour.  So it is really a matter of  swings and roundabouts.
 
     I invite your Lordship to look at the global amount, and see whether overall the amount is reasonable and compares favourably with the amount put forward by the appellant.
 
MR JUSTICE NEWMAN:  How much preparing, or involvement, did you have, Mr Shaw, other than what appears "fee for the hearing"?
 
MR SHAW:  In same way as my learned friend, I think, advised on the appeal on the merits, I did the same.
 
MR JUSTICE NEWMAN:  And that is within the fee, or is it elsewhere in the bill?
 
MR SHAW:  I believe that is within the fee.
 
MR JUSTICE NEWMAN:  We have the fee for your advice separate, you see.
 
MR SHAW:  That must be separate, I beg your Lordship's pardon.  The fee for the hearing includes the work after the advice ‑‑
 
MR JUSTICE NEWMAN:  In fact, Mr Mayall's fee for advising was rather higher than yours ‑‑ by some 50 per cent ‑‑ but taking account of the advice and your brief fee, assuming that you had comparable periods of time engaged on the matter, the discrepancy between the two bills is probably explained by the discrepancy between the two of you.
 
MR SHAW:  As I say, it is a swings and roundabouts exercise.  My preparation fee for the hearing would include, obviously, the skeleton argument and so on and so forth.
 
     The final point I would make is that the Board took this case very seriously and, therefore, it had to be prepared and presented in a comprehensive and conscientious fashion.
 
MR JUSTICE NEWMAN:  As indeed it was by both of you. Thank you very much.
 
     Yes, Mr Mayall?
 
MR MAYALL:  Can I just reply on the global aspect?  It is true that there is not that much difference, but one would expect to see the claimants' costs being much  higher because they have to do most of the work, for example in preparing bundles and documents et cetera. So generally the claimants' costs are considerably higher in any schedule that is served than the respondents' costs.  That is not the case here.  As your Lordship has observed it is more or less to do with the difference in the brief fees.
 
     My Lord, I have no other observations.
 
MR JUSTICE NEWMAN:  Thank you very much indeed.
 
     I have been asked to assess costs in respect of this one day case by way of summary assessment.  I have the advantage of two statements from each of the parties.
 
     The difference between the parties in the overall figure is of the order of £1500.  The real difference, having had an opportunity to look at the items and to hear counsel, seems to me to arise from the larger brief fee and overall fee for counsel for the respondent.  Having regard to what I do regard as a significant difference, there is, in my judgment, some ground for bringing the brief fee of Mr Shaw down.  In my judgment, parity and fairness would be met by reducing his brief fee figure by £1000.
 
MR MAYALL:  My Lord, I am sure we can work out the figures so that it will have a knock on effect on the VAT.
 
     My Lord, in relation to permission to appeal, I have to say that I am not entirely sure whether your Lordship has the power to grant permission to appeal in any event.  Your Lordship will recall that this was an appeal which was launched before the new rules as to appeal came into force on 2nd May, I think, of this year, and therefore proceeded under the old rules.
 
       Had it proceeded under the new rules then an appeal from the Board of Appeal would be a second appeal and your Lordship would not have power to give permission.  It would be a question for the Court of Appeal to give permission if they thought it necessary.
 
     My Lord, what I have to say is entirely unclear from the transitional provisions, is whether the provision about appeal from this court are governed by the rules in force when the first appeal was launched or whether they are governed by the rules now, as it  were, an appeal from this court.  So my Lord, can I just ask this: if your Lordship has permission to grant appeal, I would ask for it.  My Lord, I suspect that you do not but I want to cover myself, if I may, by formally asking for permission to appeal.  It is my Lord, a matter of great importance to a large sector of the industry ‑‑
 
MR JUSTICE NEWMAN:  It goes wider, does it, then your clients?  I suppose there are so many other people who are doing the same thing these days.
 
MR MAYALL:  My Lord, yes. I think the Board have indicated that they regard this as the test case for whether kitchen manufacturers and installers generally are caught.  So for the industry as a whole it has many millions of pounds of implications.
 
MR JUSTICE NEWMAN:  If I have the power to grant you permission, you ask me to exercise it?
 
MR MAYALL:  I do, my Lord, yes.
 
MR JUSTICE NEWMAN:  For those reasons?
 
MR MAYALL:   Yes.
 
MR JUSTICE NEWMAN:  On the assumption I have power ‑‑ do you want to make submissions as to whether I have or I have not, Mr Shaw?
 
MR SHAW:  If your Lordship is minded to grant permission to appeal then I would be submitting that your Lordship does not have the power, I will put it that way.
 
     In order to try to cast light on the subject, if your Lordship were to look to page 31 of the latest ‑‑ perhaps the only ‑‑ supplement to The White Book which I hope your Lordship has, there is flagged ‑‑ and it is reflected on page 764 of volume 1 of The White Book ‑‑the practice direction under part 52 which provides that permission is required from the Court of Appeal for any appeal to that court from the decision of a High Court which was itself made on appeal which, of course, this case was.
 
     In my submission, that bites at the time your Lordship was deliberating about whether to grant permission or not.  Therefore, I agree with what my learned friend says, which is that he tends to think that your Lordship does not have the power.  That  practice direction, in my submission, is fairly clear to that effect.
 
     If your Lordship is in any doubt about that jurisdiction, I say that on the facts of this case permission should not be granted because, first of all, there are no real prospects of success.  Your Lordship has found fairly firmly against the appellant on all three heads.  As your Lordship will recall from argument, and from the written submissions that were put in subsequently, the Court of Appeal could find against the Board on one or two heads and the outcome overall would still be the same.  I would suggest that even if my learned friend persuades their Lordships in the Court of Appeal of the merits of his arguments on one or two of the other heads, then my victory on, in particular, paragraph 1(c)(i) would be sufficient to carry me home in any event.  Therefore, there is some futility, I would submit, in sending this matter to the Court of Appeal unless the Court of Appeal make their own decision that they want to hear it.
 
     Second, I would say that although this case does affect the furniture industry as a whole, it has no wider public implications than that.  Those are my points.
 
MR JUSTICE NEWMAN:  Thank you very much indeed.  Do you want to say anything more, Mr Mayall?
 
     Mr Mayall seeks permission to appeal to the Court of Appeal.  Both counsel are of a view ‑‑ not necessarily a final view ‑‑ that this court has no power to grant permission to appeal because it is now covered by the new provisions.  On a preliminary consideration of the matter that too is my view: that I have no power to grant permission to appeal.
 
     However, even if I had ‑‑ by way of information for Mr Mayall ‑‑ I would have considered that having regard to the new provisions, and for other reasons adverted to by Mr Shaw, this is a case in which I would have refused permission to appeal in any event.
 
     Thank you both very much indeed.

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