CO/9344/2006‑CO/8167/2006‑CO/10269/2006 

Neutral Citation Number: [2006] EWHC 2277 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 7th September 2007
 
B e f o r e:

LORD JUSTICE HUGHES 

MR JUSTICE TREACY 
 
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Between: 
MICHAEL BROOKE & ORS 
Claimant

v 

THE PAROLE BOARD 
THE LORD CHANCELLOR AND THE SECRETARY OF STATE 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr S Grodzinski (instructed by Irwin Mitchell) appeared on behalf of the Claimant Brooke & Ter‑Ogannisyan
Miss P Kaufmann (instructed by Bhatt Murphy) appeared on behalf of the Claimant O'Connell
Miss S Tojadar (instructed by Stephensons LLP) appeared on behalf of the Claimant Murphy 
Miss G White (instructed by Treasury Solicitors) appeared on behalf of the Parole Board 
Mr M Vinall (instructed by Treasury Solicitors) appeared on behalf of the Lord Chancellor and Secretary of State for Justice 
POST JUDGMENT DISCUSSION
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 JUDGMENT

1.	LORD JUSTICE HUGHES:  Thank you all very much indeed for the syntactical and technical suggestions, all of which I have adopted.  
2.	As far as Miss Kaufmann's note is concerned, does anybody disagree with the proposition that on our findings O'Connell is entitled to a declaration that there is a want of independence for the purposes of the common law test?  I thought not.  In those circumstances would you distribute, please, the judgment that you now have.   
3.	I have made some adjustment to the relief section and some consequential adjustments to paragraph 7 and 60, something in order to achieve precisely what you have asked, Miss Kaufmann.  
4.	For the record, for the reasons which are set out in the judgment which is now handed down, we grant declarations in the form which is therein set out.
5.	MR GRODZINSKI:  My Lord, I am grateful.  We have prepared a draft order.  What it does is effectively copy and paste in paragraph 1 the declaration that my Lord has given in the judgment.  
6.	Therefore it only falls for me to make two applications.  The first being that the Secretary of State pay the claimant's costs in Brooke and Ter‑Ogannisyan of these proceedings to be the subject of a detail assessment, if not agreed.  The second application is that the costs of the claimant to be assessed in accordance with the Community Legal Services Cost Regulation 2009 drawn up at short order to that effect.
7.	My Lord, I understand that the Secretary of State resists in part our application for costs and will suggest that we should only have 75 per cent of our costs.  I would have a number of submissions on that application.  I do not know whether it would be convenient to address those now or after he has made his application.
8.	 LORD JUSTICE HUGHES:  I am not sure it will be possible for me to deal with them now.  What I am probably going to have to ask you all to do is put them in writing so Treacy J, who cannot be here today, can consider them with me.  I will hear the application first in any event, Mr Grodzinski.
9.	MR GRODZINSKI:  I am grateful. All I would say, unless I hear from behind to the contrary, that those instructing me would be content for my Lord alone to deal with costs unless my Lord felt uncomfortable in doing so.
10.	LORD JUSTICE HUGHES:  Thank you very much indeed.  Who is here for the Secretary of State?  
11.	MR VINALL:  My Lord, I am.  
12.	LORD JUSTICE HUGHES:  Yes, Mr Vinall? 
13.	MR VINALL:  We do ask for an order making us pay less than 100 per cent of the claimant's costs, unless your Lordship wants me ‑‑ I should first say that I entirely agree with what Mr Grodzinski has said that we would be happy for your Lordship to deal with it today rather than additional costs of going away and doing it in writing.  Unless your Lordship wants me, I am not going to go into the detail of your Lordship's power to make issue based costs order or‑‑ 
14.	 LORD JUSTICE HUGHES:  I am alive to that.  That is not your problem.  
15.	MR VINALL:  My Lord, we say that it is a valuable power to do more complete justice and reflect, my Lord.
16.	 LORD JUSTICE HUGHES:  But why in this case should it be exercised?  
17.	MR VINALL:  I take the two cases separately because we say Murphy is different.  What we say is 75 per cent for Brooke, Ter‑Ogannisyan and O'Connell.  We say only 60 per cent for Murphy.  Let me take Murphy first, because that, in my submission, is the clearest case.  In Murphy there are clearly two separate issues.  The reasons challenge is in substance a wholly separate claim in grounds.
18.	 LORD JUSTICE HUGHES:  Do you say it took up 40 per cent of your costs?  
19.	MR VINALL:  No, we do not need to go that far. We say it takes up 20 per cent.  My Lord, not even that.  The difference between what we are asking for in relation to Brooke and Murphy is only 15 per cent and it cuts both ways because not only do we not have to pay for him, he has to pay for us.  It has to be 7.5 per cent to make that difference.  Clearly two separate challenges.  In fact his grounds actually list the reasons challenge as ground 1.  
20.	When granting permission Collins J said: "While I think the other grounds are less strong they would not on their own likely to merit permission."  So clearly there is fair warning about the weaknesses of those grounds.  It was argued.  
21.	The timetable ‑‑ your Lordship will recall made separate provision for it to be argued.  It took up time and costs and it was unsuccessful.  There is absolutely no reason, we say, why the Secretary of State have to pay those costs.
22.	 LORD JUSTICE HUGHES:  What about the other three?  
23.	MR VINALL:  In relation to the other there obviously it is not so clear.  We say there are points that were taken, not on which the claimants were unsuccessful and on which the Secretary of State was successful, if those points are of such significance as to justify a modest adjustment.  We say 75 per cent but if your Lordship disagrees then obviously some adjustment to the costs order. If I can identify a few.  The point about chief probation officers, which your Lordship deals with at paragraph 35.  That is a completely separate point.  It required separate evidence and separate authority in particular the Gillies case, which is only relevant to that point and the Secretary of State was comprehensively unsuccessful on that point.  In particular, when one looks at what the Secretary of State would have to do in order to comply with the declaration of the Court, if the claimant had been successful on that point the Secretary of State would have had to take further steps which, as it is he does not have to take because the steps that are taken in relation to probation officers comply with Article 5(4).  That, in my submission, is the clearest point.  Some of the other points which were taken on which the claimants were not successful.  The bare power of appointment as opposed to the way it was used on one occasion.  Instructing the Treasury Solicitor ‑‑ simply failed on the facts and the power to make procedural rules which your Lordship has given a clean bill of health.
24.	So we say that those are points which took up time, took up costs and justify an adjustment, a modest adjustment but an adjustment to the cost which the Secretary of State should have to pay.
25.	Now, anticipating the submissions that Mr Grodzinski is going to make, I understand he is going to rely on dicta in the case of Munjaz and I am not going to make his point for him.  What we say about that, that is the exercise of discretion in one case and we say it is going to be a rare case indeed where the Court will use its costs powers to encourage litigants to take points which are ultimately unsuccessful.  Those are my submissions.
26.	 LORD JUSTICE HUGHES:  Thank you very much indeed.  Mr Grodzinski? 
27.	MR GRODZINSKI:  My Lord, in our submission it would be wrong to reduce costs by any percentage in this case.  There was a single issue raised by the claimants in Brooke and Ter‑Ogannisyan, namely whether the Board was sufficiently independent of the Secretary of State to meet the Convention requirements of independence.  We won on that issue.  The mere fact that not every matter upon which we relied to that conclusion does not, in my submission, alter that unitary result.  Further, this is not a case in which we have pursued any bad points, or indeed any matters which my Lords have found to be irrelevant to the overall issue.  Crucially, in my submission, as my Lord's judgment accepted, your Lordships had to look at the evidence in the round.  It would have been, for example, quite impossible to separate out and ignore the power of appointment which by itself my Lords found was not incompatible with independence from how it was exercised, namely in relation to making appointments to achieve policy aims.
28.	The one example relied upon by my learned friend just now, namely in relation to chief probation officers, was in fact focused on by the claimant in Murphy, not by my clients.  It took up two paragraphs of my skeleton argument, amounting to five lines and we did not seek to argue that by itself the existence of chief probation officers on the Parole Board rendered the Board lacking in independence.  In any event, we would not accept a strict issue based approach is correct in a case such as this, with wide ranging public importance involving Human Rights.  Can I hand the case to which my learned friend Mr Vinall referred, Munjaz, and I flag the relevant paragraph for my Lord's assistance.  (Same Handed). It was a decision of the Court of Appeal in a case concerning the legality of the Secretary of State's policy on seclusion in mental health hospitals.  Can I take your Lordship to paragraph 89 and invite you to read it.  (Pause).
29.	 LORD JUSTICE HUGHES:  Yes, thank you.  
30.	MR GRODZINSKI:  Finally, my Lord, one of the factors relevant to the questions of costs under CPR 44.3 is, as my Lord knows, the conduct of the parties.  All I would say on that is, if discretion is ready to be exercised, my Lord may recall the very last minute nature of much of the disclosure of minutes in this case given by the Secretary of State.  In particular, on the highly relevant area of funding for interviews which was only given the day before the hearing, even before the hearing and after much pressing by the claimant for specific disclosure.  That is a factor weighing heavily, in my submission, in support of costs in their entirety to the claimant.  For those reasons I ask for an order for costs.
31.	 LORD JUSTICE HUGHES:  Thank you very much. Miss Kaufmann, do you want to add anything to that? 
32.	MISS KAUFMANN:  Very little.  Needless to say I adopt everything Mr Grodzinski has just said.
33.	 LORD JUSTICE HUGHES:  I had imagined you might.
34.	MISS KAUFMANN:  There are slight points of distinction because we of course succeeded only on the common law bias point and that is relevant to one of the matters raised by my learned friend, namely appointment because of course appointment is something provided for by statute and therefore is not a matter we relied upon in the common law bias point, because we could not.  So in so far that is a reason to find that we should not get all our costs, it does not apply to us.
35.	The remaining points which distinguished us from the other claimants related to why the equivalence in law of bias at common law and Article 5(4).  Those were matters upon which we succeeded, they were not even in dispute.  So there was nothing, nothing at all that the claimant argued in O'Connell upon which he lost.
36.	 LORD JUSTICE HUGHES:  Right.  As far as you are concerned, quite a lot of your work will have gone into preparing the issue which has yet to be determined. 
37.	MISS KAUFMANN:  That is so.
38.	 LORD JUSTICE HUGHES:  In your case any order for costs ought to be limited to the independence issue, ought it not? 
39.	MISS KAUFMANN:  That is exactly right, and we have drafted an order which is in those terms.
40.	LORD JUSTICE HUGHES:  That is all you are wanting. 
41.	MISS KAUFMANN:  Payment of costs from the second defendant in relation to the issue of independence at common law, which of course will include costs in relation to independence more generally.
42.	 LORD JUSTICE HUGHES:  No doubt.  
43.	MISS KAUFMANN:  The remaining costs will be reserved to be determined by the court which determines the adjourned part of the claim.
44.	LORD JUSTICE HUGHES:  You are helpfully reading from a document that everybody has except me (Same Handed) 
45.	MR VINALL:  That is different.  Keep hold of that as well.  
46.	MR GRODZINSKI:  I hand up my draft order at the same time.
47.	 LORD JUSTICE HUGHES:  I do not mind where it comes from, as long as it is an agreed order subject to the question of quantum of costs.
48.	MISS KAUFMANN:  I think the Secretary of State's order is in the same terms as my order except for the question of costs and it has an additional couple of points which are not agreed because your Lordship will see there is going to be an application for leave to appeal and an application for a stay of those declarations and those matters are to be dealt with.
49.	 LORD JUSTICE HUGHES:  I follow all right.  Thank you very much, Miss Kaufmann.  Miss Tojadar, you do need to address the separate question of Murphy's costs of the reasons challenge.
50.	MISS TOJADAR:  Yes, my Lord.  I of course adopt the submissions of my learned friend before me.  
51.	My Lord, as I understand it, the additional points that were raised for on behalf of Mr Murphy did not take up much time during the hearing.  I believe the hearing lasted for a‑day‑and‑a‑half and the submissions made in relation to the additional points adopted lasted approximately five to 10 minutes.  Now, the point was dealt with without any reference to the law and, even if the point had not been raised, it is difficult to see how the hearing would not have lasted for the same amount of time, a‑day‑and‑half.  Now, on that basis it is difficult to see how counsel's fees would have been any lower had that point not be raised.
52.	Given the issue was so small, no sensible proportion of the fee can sensibly be allocated and certainly not the 15 per cent suggested by my learned friend. 
53.	LORD JUSTICE HUGHES:  It is not just counsel's fees on the day, is it, it is the preparation of the material which in his case involved examining the process of the decision‑making in his particular case.  
54.	MISS TOJADAR:  All I can say in response that is the point was a very minor one.
55.	 LORD JUSTICE HUGHES:  Okay.  Is there anything else?  Thank you very much.  That covers it, I take it, from your point of you, Mr Vinall.  
56.	MR VINALL:  Just one point ‑‑ I am not sure I accept the total time taken up by the reasons was five to 10 minutes but your Lordship no doubt will recollect.
57.	There is one more significant point that my learned friend, Mr Grodzinski, took which is his argument is that this a single issue.  The relief you get at the end is the same so it does not matter.  In my submission, that is a fundamentally wrong approach.  Take the example of the case where one is seeking a declaration that a patent is invalid, for example. You are going to get that if one of your 17 grounds is successful.  It does not preclude the Court making an issue based costs order if you lose on 16 and win on one.
58.	LORD JUSTICE HUGHES:  Quite right.  Thank you very much indeed.
59.	The successful claimants seek orders for costs against the Secretary of State.  The Secretary of State accepts in principle that orders for costs should follow but seeks to limit the costs recoverable in this manner.  He says that he should not be ordered to pay 75 per cent of th costs of the claimants, Brooke, Ter‑Organnisyan and O'Connell and not more than 60 per cent of the costs of Murphy.  All parties invite me to deal with it alone today, although Treacy J cannot be here.  They do that in the interests of saving further unnecessary expenditure, and it seems to me that if that is their joint invitation I ought to accede to it.  
60.	In the case of the three first named claimants, that is to say those other than Murphy, I see no reason why the order for costs should not be a full order for costs.  It is true that in respect of some points taken on their behalf, they have not succeeded.  I accept that were it a case in which substantial costs must have been incurred in relation to those points, there is ample power to make an issue based costs order, even though the declaration which the claimants have achieved is the same as it would have been if they had succeeded on every point.
61.	But on the facts of this case, what the Court was being asked to do is to address a complex matrix of the relationship between the Parole Board and the Secretary of State.  It was quite impossible to examine that without looking at the whole of the relationship and the judgment which was necessary had to be based upon the whole of the relationship.
62.	The relatively few, although not insignificant points on which the claimant fail did not, I am quite satisfied add significantly to the costs of the exercise.  In those circumstances, in their cases, I have no doubt that the proper order is an order for costs unrestricted by percentage or issues.  I should say that I would have reached that conclusion without the assistance of the Queen Munjaz v Mersey Care Nation Health Trust and Ors [2003] 3 WLR 1505, but it is a decision which certainly supports the conclusion to which I would have come in any event.
63.	So far as Murphy is concerned, there are quite separate factors.  He pursued independently of the independence issue a reasons challenge for which we were quite satisfied there was never any proper basis.  That will not have increased the costs of representation at the hearing.  It will have increased, to some extent, the costs of the preparation.  Doing the best I can, I am satisfied that in his case the costs that he recovers should be limited to 90 per cent.
64.	In the case of O'Connell, I make it clear that Miss Kaufmann properly seeks and I grant only an order for costs attributable to the independence issue, the costs of the other issues raised by his case must be reserved to the final determination of them.  
65.	Now then, Mr Vinall, you have another application I expect.  
66.	MR VINALL:  My Lord, yes. The Secretary of State does seek permission to appeal against the Court's judgment.
67.	LORD JUSTICE HUGHES:  Have you some draft grounds? 
68.	MR VINALL:  No, I regret to say I do not.
69.	LORD JUSTICE HUGHES:  In that case, how am I supposed to deal with it? 
70.	MR VINALL:  If I can make a few observations as to why permission to appeal should be granted.  Your Lordship will be very familiar with the submissions which were made before your Lordship and Treacy J and plainly the submissions which are going to be made to the Court of Appeal are not going to be dissimilar in substance.
71.	There are a few additional points and clearly generally the question of the independence is one of impression ultimately and judgment in the light of the whole of the evidence as your Lordship says.  In my submission, the Court of Appeal may take a different view in the exercise of that judgment.
72.	One particular point, finding of your Lordships on the directions point, we will be seeking to submit that that cuts across or may be seen to cut across the findings of the Court of Appeal in the Girling case.  Given the ultimate relief, the ultimate result of Girling‑‑ 
73.	 LORD JUSTICE HUGHES:  I thought it was a direct application of Girling.  I might be wrong about that.  Was I? 
74.	MR VINALL:  With respect, my Lord, we would say so.  Also the result in this case has been to find a lack of structural independence, when the bulk of the material which is used to reach that conclusion are particular instances.  What one finds and an example is paragraph 49 in the judgment, is a finding that the existence of an arrangement in the abstract would not necessarily cause a problem but the particular way it has been operated in one instance has been found to be objectionable.
75.	In my submission, there is a real prospect of convincing the Court of Appeal.  There is a distinction to be drawn between the structure arrangements themselves and particular ‑‑ even if particular acts may have been objectionable that does not necessarily down the whole system we would say. 
76.	In addition, your Lordship needs no reminding, I am sure, of the general importance of this case.  Its relevance to a long‑standing system which is in the past been the subject of unsuccessful challenges in the Strasbourg Court.  We say these are a matter which does merit consideration by the Court of Appeal and we respectfully ask your Lordship permission to go there.
77.	LORD JUSTICE HUGHES:  Yes.  
78.	This is, as counsel will be unsurprised to learn, a matter which Treacy J and I have considered in principle in advance of today.  I am more than a little concerned at the lack of grounds.  But we are in no doubt about the potential importance of the judgment nor of its general significance.  We are conscious that Weekes and Hirst albeit the difference in material, and I think I am about persuaded to be Mr Vinall that there are arguable grounds.  We shall grant permission to appeal.  Representation on that occasion is of course a matter, so far as the claimants are concerned for the Legal Services Commission not for us, but we ought perhaps to draw attention to the common interest of the parties on this issue which might, for all we know, lead to a change in the nature of representation.
79.	Miss White, are there other appeals involved in the Parole Board on their way to the Court of Appeal at the moment? 
80.	MISS WHITE:  My Lord, involving this point?
81.	 LORD JUSTICE HUGHES:  No, but involving the present structure and management of the Parole Board.
82.	MR WHITE:  My Lord, as far as my instructing solicitor is aware, no.
83.	 LORD JUSTICE HUGHES:  Well, in any event I am proposing to add to the permission the direction that this appeal will be brought to the attention of the supervising Lord Justice in case there are any other cases alongside which it could be usefully be managed.  Is there anything else?
84.	MR VINALL:  I too am very grateful.  As you will see from the document that has been handed up, I also seek a stay of your Lordship's declaration pending final resolution by the Court of Appeal further order and also in relation to the costs order.
85.	 LORD JUSTICE HUGHES:  Yes, does anybody resist either of those applications?  You cannot, can you? 
86.	MR VINALL:  I am grateful.
87.	 LORD JUSTICE HUGHES:  Very well.  Judgment for declaration is in the form proposed.  Second defendant to pay the claimant's costs in the manner that I have already indicated.  Costs of the claimant to be assessed in accordance with the Community Legal Services Costs Regulation 2000.  Permission to appeal, stay, declaration and costs order pending appeal.  Does that cover it?  
88.	MR GRODZINSKI:  I cannot recall whether my Lord included in the menu, the LSC detailed assessment.
89.	 LORD JUSTICE HUGHES:  Yes, Mr Grodzinski, I did.  That is perfectly all right. In any event would you, Mr Vinall, I think that is probably the appropriate combination, please settle a single agreed order.  Effectively I have probably have it.  I rather the office had it on one piece of paper that was approved by both of you, please.  Can you do that by 1 o'clock? 
90.	MR GRODZINSKI:  I am afraid I cannot, I am going to Bristol now. 
91.	LORD JUSTICE HUGHES:  Do it in practice in 10 minutes at the time back of this Court and you trust Mr Vinall to have it in typed form.
92.	MR GRODZINSKI:  Yes, my Lord.  
93.	LORD JUSTICE HUGHES:  Thank you all very much for your help.  I am grateful for it.