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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Collins v Plymouth City Council [2009] EWHC 3279 (Admin) (11 December 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3279.html Cite as: [2009] EWHC 3279 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2009

Mr Justice Holman

The Issue

1. A local authority provide non residential services to a disabled person. They make, and seek to recover from him, a charge, taking into account his income from an award of damages for personal injury. The issue is whether they acted unlawfully in making a discretionary decision to take that income into account.

The facts and claim

2. The essential facts are as follows. In 1984 the claimant, then aged 9, suffered severe injuries in a road traffic accident. He is now aged 35 and has life long paraplegia with cerebral palsy, and requires constant care. Liability for the accident was apportioned 80:20 and in 1995 a global award of damages was agreed and made of £1,139,000. Since 1992 a solicitor, Mr Guy Eskell, has acted as receiver (now financial deputy) under orders of the Court of Protection to manage the fund. Part was applied in buying, adapting and equipping a suitable home for the claimant, where he is mainly looked after by his parents with the utmost devotion. So his residential and accommodation needs are entirely provided out of his own funds. The balance of his damages award is invested and now stands at around £700,000. The claimant has no other capital than that fund and no other income than a range of state benefits to which he is entitled and the income from the invested fund. As at February 2009 (the date of Mr Eskell's statement) his total state benefits were about £180 per week and his gross annual income from the fund was about £26,000.
3. Since 2006 the Plymouth City Council (Plymouth) have provided and continue to provide day care services to the claimant. These are (i) the provision of care in his home (domiciliary care), and (ii) the provision of attendance at a day care centre (day services). The precise number of hours provided seems to vary a little from week to week, but recent invoices indicate the following broad picture: provision of about 13 hours' domiciliary care a week at, currently, £11.65 per hour, or £151.45 per week; and provision of day services on two days a week at, currently, £5.80 per day, or £11.60 per week, making a total weekly charge of about £163 in most (but not all) weeks. Plymouth have assessed that that sum is less than the maximum amount which the claimant could be required to contribute and accordingly have billed Mr Eskell, as the claimant's deputy (formerly, receiver), in these amounts. For a period Mr Eskell paid the billed charges. He has paid in total the sum of £7,626.99 on invoices covering the period from week ending 17 December 2006 to week ending 20 April 2008. He has declined to pay subsequent invoices covering the week ending 20 April 2008 to date and now totalling (to week ending 1 November 2009) £9,623.58. (There seems to be some double accounting in the invoices and documents in respect of the week ending 20 April 2008 itself, but that is irrelevant to the substance of this case.)
4. The present claim for judicial review is brought by Mr Eskell on behalf of, and as litigation friend for, the claimant who, because of his injuries, lacks capacity to litigate on his own behalf. Mr Eskell asserts and seeks a declaration that the decision of Plymouth to make charges was reached unlawfully for reasons which I will explain. He seeks to recover the £7,629.99 already paid, and a declaration that he is not required to pay the outstanding invoices. As I understand it, Mr James Neill, on behalf of the claimant, accepts that Plymouth could now lawfully make a fresh decision, correctly exercising their discretion, to levy charges in the future; and I am not asked to make any declaration to the effect that Plymouth cannot or should not make a charge in the future. The claimant's schedule of the costs of these proceedings totals about £46,000. I do not have any corresponding figure from Plymouth, but if their costs are even half that amount the total costs of this litigation is around £70,000. The total charges in issue to date are around £17,250 (9,623 plus 7,630). One can only wonder at the cost effectiveness and proportionality of this contest.

The statutory framework

5. The essential statutory framework is clear and, in my view, straightforward. It is not in issue that Plymouth are entitled to make and recover such charge (if any) for the services that they have provided and continue to provide as they consider reasonable.
6. The services in question are provided under section 29 of the National Assistance Act 1948, which it is not necessary to quote. There is no issue in this case as to the suitability or sufficiency of the domiciliary care and day services which are in fact provided for the claimant.
7. So far as is material, section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (HASSASSAA) provides as follows:-

"17. Charges for local authority services in England and Wales

(1) Subject to subsection (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable.

(2) This section applies to services provided under the following enactments -

(a) section 29 of the National Assistance Act 1948 ....

(3) If a person-

(a) avails himself of a service to which this section applies, and

(b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,

the authority shall not require him to pay more for it than it appears to them that it is reasonably practicable for him to pay.

(4) Any charge under this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.

(5) This section has effect subject to any regulations under section 15 of the Community Care (Delayed Discharges etc.) Act 2003 (power to require certain community care services and services for carers to be free of charge)."

8. The services provided to the claimant are not services which require to be provided free of charge under the regulations to which section 17(5) refers.
9. The combined effect of subsections 17(1) and (3) is that a local authority may charge and recover whichever is the lesser of such charge (if any) for the services(s) as they consider reasonable, or, if subsection (3) applies, the amount which it appears to the local authority it is reasonably practicable for the person who avails himself of the service(s) to pay. However, the means of the claimant are such that it is not suggested in the present case that subsection (3) applies. In short, on the facts of this case, only subsection (1) is in point and Plymouth "may recover such charge (if any) for [the services] as they consider reasonable."
10. Plainly that gives to Plymouth, and to any local authority, a very broad discretion; but in exercising their discretion they must not act in a way which is Wednesburv unreasonable or otherwise unlawful. Further, since the issues in this case relate to the exercise of social services functions, section 7 of the Local Authority Social Services Act 1970 (LASSA) applies. That provides as follows:

"7. Local authorities to exercise social services functions under guidance of Secretary of State

(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."

11. The Secretary of State has issued guidance in the general territory of this case but not actually dealing with the situation that arises in this case. Plymouth have made considerable reference to that guidance in documents (both letters and their pleadings in this case) which explain why they decided to levy the charges. The claimant argues that Plymouth either wrongly considered that the guidance applies to the situation in this case; or alternatively wrongly fettered their discretion by having any regard at all to guidance which does not in fact apply. Plymouth say that they have merely, and permissibly, had regard to the guidance, and that their own policy is no less generous than that guidance but could lawfully be less generous than it in fact is.

The guidance

12. For many years the Department of Health has published a local authority circular, expressly issued under section 7(1) of LASS A, called "Charging for Residential Accommodation Guide" (CRAG), which has been the subject over the years of many amendments. As its name makes clear, CRAG concerns charges for residential accommodation, not day services, and so it is patently not directly in point in the present case. It gives detailed guidance under which, by virtue of LASSA, local authorities must act, as to the basis of charging for the provision of residential accommodation. In part the guidance reproduces, or summarises the effect of, regulations of the National Assistance (Assessment of Resources) Regulations 1992. Paragraph 6.028 of CRAG (reflecting paragraphs 10 and 19 of Schedule 4 to the regulations) states that "the value of funds held in trust or administered by a court which derive from a payment for personal injury...." are disregarded indefinitely. By amendment number 19 made in March 2003 paragraph 10.026 provided that:

"10.026 The following periodical payments are disregarded:

• Payments from a trust whose funds are derived from a payment made in consequence of any personal injury.

• ....

• ....

The payments in 10.026 are fully disregarded if intended and used to pay for any item which was not taken into account when the standard rate was fixed for the accommodation provided. Otherwise, £20 is disregarded."

13. The last limb of paragraph 10.026, in italics above, was deleted by a further amendment made in April 2009. In the case of provision of residential accommodation, to which the regulations and CRAG directly apply, the effect of that amendment may be very considerable. Between March 2003 and April 2009 the disregard was £20 unless the payments were intended and used to pay for any item which was not taken into account when the standard rate was fixed. Since April 2009 the disregard is total.
14. The Department of Health has also issued a document entitled "Fairer Charging Policies for Home Care and other non-residential Social Services - Guidance for Councils with Social Services Responsibilities" ("Fairer Charging"). This guidance is also expressly issued under section 7 of LASSA and states that councils "are expected to implement it" under LASSA. I quote from the version issued in September 2003. The "Executive Summary" at the outset makes plain that the guidance "does not make any presumption that councils will charge for nonresidential services, nor does it introduce any requirement to charge"; "it aims to help local councils, who decide to charge for any non-residential services, to design reasonable and fair charging policies. It seeks to ensure greater consistency in charging policies." The services provided for the claimant all fall within the types of non-residential social services identified in paragraph 9 of Fairer Charging. Paragraph 15 of Fairer Charging contains the general proposition that:

As a minimum, users' income should not be reduced by charges below "basic" levels of Income Support, as defined in this guidance....., plus a buffer of not less that 25%."

15. Section VIII of Fairer Charging treats "Savings and Capital". Paragraph 57 states that "Councils may take account of a user's savings or other capital in assessing their resources, but are not obliged to do so ..." Paragraph 59 states that "The value of the main residence occupied by the user should not be taken into account....., but other forms of capital may be taken into account, as set out in CRAG." Paragraph 60 states that "Consistent with the guidance in CRAG, ex gratia payments made to former Far Eastern prisoners of war and payments made under the Vaccine Damage Payment scheme should be disregarded entirely." Fairer Charging makes no other reference to express disregards and makes no express reference to the treatment of either the capital or income from personal injury damages awards. However in Crofton, to which I refer more fully below, the Court of Appeal held at paragraphs 77 and 78 that the effect of the words "other forms of capital may be taken into account, as set out in CRAG" where they appear in paragraph 59 of Fairer Charging is to import the CRAG rules as to capital in their entirety into Fairer Charging. In the upshot, Fairer Charging requires that in assessing a person's resources, the capital sum represented by a damages award must be left out of account.

Plymouth's own Fairer Charging Policy

16. In two phases in the period October 2002 to April 2003 Plymouth introduced their own "Adult Social Care Fairer Charging Policy." ("Plymouth's Fairer Charging Policy"). I have been supplied with a revised published version dating from October 2007, although somewhat confusingly called version No 1.0. It plainly purports to describe Plymouth's own policy within the framework of the DOH Fairer Charging. Under a heading "Principles of Charging" Plymouth's Fairer Charging Policy states:

"2.1 The charges implemented should be consistent, coherent and demonstrably fair to service users and carers.

2.2 All clients will be offered a full financial assessment and the charges implemented will not reduce their income below

current entitlement to Income Support .....plus a further 25% buffer."

17. Under a heading "Financial Assessment Process" Plymouth's Fairer Charging Policy states

"4.4 The clients charge will be calculated from the amount of income received and capital held. This will include benefits received by the client for example....."

18. There then follows a long list of a wide range of state benefits, pensions and allowances, and also "Occupational or Private Pension." Neither in paragraph 4.4 nor anywhere else does Plymouth's Fairer Charging Policy make any reference to capital or income from personal injury damages awards. The generality of the first sentence of paragraph 4.4 is wide enough to include such capital or income, and the non exhaustive list in the second sentence (which is not limited to forms of state benefit - see the reference to occupational or private pension) does not give any steer that capital or income from personal injury damages are excluded from the generality of the first sentence.

Crofton v NHS Litigation Authority

19. CRAG and DOH Fairer Charging have been the subject of judicial consideration by the Court of Appeal in Crofton v National Health Service Litigation Authority [2007] EWCA Civ 71. That case concerned assessment of the level of need, and hence damages, in a personal injury case. An issue was the extent to which the relevant local authority would or might make direct payments towards the claimant's care costs, and if so, whether the local authority could have regard to the damages in deciding what direct payments to make. That in turn required consideration of the relevant statutory framework and the guidance issued under section 7 of LASSA, viz CRAG and Fairer Charging.
20. At paragraph 76 the court (it being a judgment of the court) made plain that quite different regimes apply to the provision of accommodation (residential care) pursuant to section 21 of the National Assistance Act 1948, and to the provision of services (including domiciliary and day care service) under section 29 of that Act. In relation to the former, "the ring-fencing of damages and income arising from damages is provided for by statute and statutory instrument." In relation to the latter, "The section 29 framework is different: the local authority is given a discretion to decide what to charge by section 17 of HASSASSA ..... The discretion is asserted and guidance is given as to how it should be exercised in the Fairer Charging Policy."
21. In paragraphs 77 and 78 the Court of Appeal made plain that the effect of DOH Fairer Charging, when read with CRAG, is that "in the means testing of the claimant's resources, the capital sum represented by the damages awarded in this case would be left out of account." Pausing there, in the present case it is common ground that the capital fund has been left out of account by Plymouth.
22. The court in Crofton began paragraph 79 by saying: "The treatment of income deriving from an award of damages for personal injury is more problematic." After detailed consideration of relevant party of CRAG and Fairer Charging (which they later described as "labyrinthine") they concluded at paragraphs 83 and 84:

"83. The position with regard to income is far from clear. The CRAG rules for dealing with such income are not expressly imported into the Fairer Charging Policy. In this respect, the contrast with the treatment of capital is striking.....

84. ....the treatment of investment income [which is in point in the present case] is a matter for the discretion of the local authority, untrammelled by any guidance in the Fairer Charging Policy as to how it should be exercised ...."

23. The arguments of counsel in the present case have homed in and focussed upon the word "untrammelled" where it appears in paragraph 84 as if it were a word in a statute. The precise nuance, or range of possible nuances, of the word are not entirely clear, and I respectfully wonder whether the Court of Appeal intended or expected it to be the subject of the intense focus that it has been in the present case.
24. Much of the argument in the present case boils down to the following. On behalf of the claimant, Mr James Neill submits that the word "untrammelled" precludes any consideration of CRAG at all. On behalf of Plymouth, Miss Lisa Sullivan submits that although CRAG provides no binding Guidance (she uses the capital G), that does not preclude (and the use of the word "untrammelled" does not preclude) that it may contain helpful material at which a local authority may look when developing their own policy, since policy is not made in a vacuum. She submits that a local authority are indeed untrammelled in the sense of not being bound by any Guidance in Fairer Charging, it being silent on the issue. But in selecting the word "untrammelled" the Court of Appeal did not intend to state and did not state that Fairer Charging and/or CRAG contain no material that might prove useful to a local authority when, in the exercise of their untrammelled discretion, they seek to frame their own policy in relation to income from personal injury damages.

The further distinction between awards of damages held on trust and those

administered by or under the Court of Protection

25. Paragraph 10.026 of CRAG refers to disregarding "payments from a trust....." That is drawn from underlying regulations, and in Peters v East Midlands Strategic Health Authority and others [2008] EWHC 778 (QB) at paragraphs 42 and 43 Butterfield J. drew a distinction, based on the language of the regulations, between income derived from damages awards which are held in trust, and income derived from such awards which are administered by the Court of Protection. Mr Neill thus submits that income from awards where the fund is administered by or under the Court of Protection, as in this case, is altogether outside paragraph 10.026 of CRAG and, a fortiori, the treatment of such income should be untrammelled by any consideration of Fairer Charging or CRAG. Miss Sullivan submits that there is no rational basis for different treatment of income depending on whether the funds are held in a trust or administered by or under the Court of Protection, and Mr Neill has not been able to suggest one. She refers to the comments of Butterfield J. in paragraph 44 of Peters echoing some observations in McGregor on Damages. ("Why should there be a difference between the claimant with an award administered by the Court of Protection and the claimant who has agreed to the sum awarded being placed in a personal injury trust ?") She submits that as there is no identified policy reason for treating the two sources of income differently, Plymouth, in the exercise of their discretion, are entitled to treat them the same.
26. I, likewise, am unable to discern any policy reason for treating the two sources of income differently and since I am considering a situation to which the regulations in any event do not apply, I propose to ignore the supposed distinction in my further consideration of this case.

The expressed reasons of Plymouth in correspondence

27. Having set out at some length the legal context, I now revert to the facts of the case and the course of the relevant correspondence. There was considerable correspondence during 2007 and 2008 between Mr Eskell (or the firm Pardoes of which he is a partner) and Plymouth City Council and in particular Mr Mark Bamsey, who was at all material times and is the Client Financial Services Manager for the council.
28. Mr Neill placed some reliance on the use of the words "must be taken into consideration" where they appear in the second main paragraph of Mr Bamsey's letter of 19 September 2007, now at bundle A page 357. He suggested that that paragraph indicated a lack of discretion by Mr Bamsey and an erroneous belief that he was bound, without further consideration, to take the income into account. Miss Sullivan has satisfied me that the language used in the letter of 19 September is merely addressing the proposition, stressed in bold, in Mr Eskells letter of 10 September under reply, that the claimant "has no income or capital in his own right." I do not consider that the letter of 19 September assists in determining how or why Plymouth exercised their discretion or whether they did so unlawfully.
29. The first key letter is Mr Bamsey's letter of 16 October 2007, now at bundle A page 370, which says in part as follows

"I enclose for your information Local Authority Circular 2003 No.8, issued by the Department of Health. Please note that under heading 'Home Care Charges' the guidelines state that, when charging for home care, savings and capital should be treated no less generously than the rules for assessing residential care charges. On this basis Plymouth City Council has always disregarded capital sums from Personal Injury Awards that are held in Trust or administered by a Court, for example under Receivership Order.

The relevant Charging For Residential Accommodation guidelines relating to Personal Injury go on to state that income from such Trusts/Personal Injury Awards is also disregarded in full if used to purchase care not provided within the Local Authority standard cost of care; ie if the income is used to purchase care not covered by the Local Authority, it will be disregarded for financial assessment purposes. However, income not assigned to purchase said care will be disregarded up to a maximum of £20 per week. Thereafter it is taken into consideration in full when calculating how much a service user will contribute towards the cost of the care provided by the Local Authority. I attach the relevant part of the Charging For Residential Accommodation guidelines, paragraph 10.026 for your information. The City Council has treated income no less generously when assessing for non-residential care.

You stated in our telephone conversation that it is your contention that [the claimant] holds no money of his own and receives no income in his own name, as all funds are vested in the Court of Protection. I believe this to be an erroneous interpretation of the role of both Receiver and Court of Protection. Paragraph 2 of the First General Order makes it very clear that net income of the patient should be used for maintenance and general benefit of the patient, this includes providing for the care needs of the patient."

30. On 23 July 2008 Mr Eskell wrote at length to Mr Bamsey citing Peters and Crofton and asking him, or Plymouth, to reconsider their decision to take into account the income derived from the claimant's award, and to repay the sum of £7,626.99 already paid. In reply Plymouth said they would undertake a review. After a long delay Mr Bamsey wrote again on 16 December 2008, now at bundle A page 441, saying in part as follows:

"It is our belief that we have and continue to assess [the claimant's] contribution towards the cost of his care correctly. This is because the Local Authority retains the discretion to take income from Personal Injury Awards into consideration when assessing charges for home care services. You do however have the right to ask for further review of the assessed charge if you consider [the claimant] is unable to pay the amount assessed. Therefore, if you require a further review of the assessed charge this matter will be referred to a Senior Manager for further consideration.

I enclose a financial assessment form for you to complete and would ask that you provide any details you would like us to take into consideration when reviewing the charge.

The aim of the review will be to consider the fairness of the charge in the light of [the claimant's] own financial circumstances but also in relation to the position of other users and charge payers."

31. That letter seemed to contemplate a "further review" if, on the figures, the claimant was "unable to pay the amount assessed" but that was not, and has never been, the contention of Mr Eskell. As a statement of the reasons of Mr Bamsey or Plymouth for their decision to make a charge, the letter does no more than state a belief that Plymouth have assessed the contribution "correctly" and assert that they "retain the discretion to take income from personal injury awards into consideration when assessing charges for home care services."
32. In my view, if and insofar as the reasons of Plymouth can be gained from the correspondence, they are to be found in the parts of the letter of 16 October 2007 which I have already quoted.

Mr Bamsey's witness statement

33. By his witness statement dated 19 June 2009, now at bundle C pages 703 - 711, Mr Bamsey first describes the evolution since 2003 of Plymouth's own Fairer Charging Policy. Next, at paragraphs 4 and 5 he states:

"4. When considering charges to a service user who is a beneficiary of a personal injury trust or whose personal injury award is administered via the Court of Protection, capital sums are always disregarded. The income from these awards is in any event subject to a £20 disregard and if any of the remaining income is used to pay for care not provided by the City Council that is also disregarded; otherwise it is taken into account.....

5. It is the Council's view that this policy complies with the statutory guidance and is within the scope of the Council's discretion. The policy mirrored the guidelines of how income from personal injury damages could be taken into account where that was allowable for those clients receiving residential care...."

34. Mr Bamsey describes how Plymouth has "an aging population" and, at paragraph 7, that "Due to the considerable budgetary pressures, the Council's policy is to make reasonable charges where it is permitted to do so by the guidance and regulations, in order to maximise the services that can be provided ..... As income from damages administered by the Court of Protection can be taken into account in respect of nonresidential care services, Plymouth City Council does so ..... It was decided that such income should be taken into account in an equivalent manner to when income from personal injury damages can be taken into account for residential care, and is in fact taken into account as set out in paragraph 4 above."

Discussion and conclusions

35. Mr Neill correctly submits that neither the letter of 16 October 2007 nor that of 16 December 2008 make any reference to Plymouth's own Fairer Charging Policy. Rather, the first two paragraphs of the letter of 16 October, quoted above, focus on, and make relatively detailed reference to, CRAG. The second of the paragraphs twice refers to "the relevant" guidelines. The last sentence of the second paragraph, "The City Council has treated income no less generously when assessing for nonresidential care", is an obvious direct reference to paragraph 8 of the LAC (2003) No. 8 referred to in the first paragraph, which concerns savings and capital (but not income). In short, submits Mr Neill, Plymouth have not exercised any discretion of their own but have blindly applied CRAG guidelines as if those guidelines governed this case. In they process they have unlawfully fettered or trammelled their discretion.
36. I understand, but cannot accept, these submissions. Plainly, Plymouth do have a policy of their own, namely their own Fairer Charging Policy. That policy is lawful, and is designed, as Mr Bamsey says, to "make reasonable charges where it is permitted to do so ..... in order to maximise the services that can be provided." Paragraph 4.4 of that policy is wide enough to include income from personal injury damages awards, and the written policy makes no provision for any disregards in relation to such income. As described in paragraph 4 of Mr Bamsey's statement, Plymouth do in fact apply the policy in a way which is more favourable in its treatment of such income, by making the £20 disregard. They exercise their discretion to do so by having regard to, but not directly applying, the CRAG guidance. I cannot accept that it is wrong, so as to be unlawful, to have that regard. On the contrary, it seems to me to be entirely rational and appropriate that in deciding their approach in situations to which the regulations and guidance do not apply, they nevertheless had some regard to that guidance and ensured that their own decisions were "no less generous".
37. Mr Neill raises as a separate and discrete issue or ground of complaint that the "review" in 2008, resulting in the letter of 16 December 2008, failed to take into account all the matters raised in Mr Eskell's letters of 23 July and 11 September 2008 and/or failed to provide adequate reasons. Being issued on 24 February 2009 the claim form identified the decision of 16 December 2008 as the decision to be judicially reviewed in order to defeat any assertion of delay. Delay is no longer contended or relied upon by Plymouth. Mr Bamsey says in paragraph 23 of his statement that he did undertake a review but, as the letter of 16 December states, concluded that their previous approach had been correct. In my view that effectively adopts and repeats the reasons and reasoning from October 2007 and does not afford a second or discrete ground for judicial review.
38. In the result, I dismiss the claim.
39. I do, however, add a postscript. The present claim for judicial review is firmly based on decisions made in October 2007 and December 2008 at the latest. The letter of 16 October 2007 makes express reference to paragraph 10.026 of CRAG in its then form, and paragraph 4 of Mr Bamsey's statement implicitly refers to paragraph 10.026 in that form. As I have noted in paragraph 13 above, paragraph 10.026 was significantly changed in April 2009 by deleting the words I quoted in italics. At paragraph 41 of her skeleton argument, Miss Sullivan wrote that as a result of that change Plymouth ... is reviewing its policy on taking personal injury damages into consideration in the financial assessment." It is not for me, in these proceedings, to express or imply any view at all as to what the outcome of that review of policy may be, and I make clear that I do not do so. But it does seem to me that as their previous and still continuing policy did have regard to paragraph 10.026 in its then form, Plymouth are indeed under a clear duty to review and reconsider what their own policy should now be. There needs to be (as Miss Sullivan says there is) a positive and deliberate review and reconsideration, and the words in paragraph 41 of her skeleton should not be mere lip service.




POST JUDGMENT DISCUSSION

40. MR JUSTICE HOLMAN: Well, if the two members of the press want to have copies, supply that to them. I am hoping that will leave two at least for each of the parties, although in a way, Ms Sullivan, you hardly need take more than one with you.
41. All right. Well, I now formally hand down the judgment in this case and I direct, pursuant to Practice Direction 39A of the CPR paragraph 6.1, that no official shorthand note shall be taken of this judgment and that copies of this version as handed down this morning may be treated as authentic.
42. Now, where do we go from there?
43. MS SULLIVAN: My Lord, I ask for the defendant's costs.
44. MR JUSTICE HOLMAN: Are there any existing costs orders to date?
45. MS SULLIVAN: No, my Lord.
46. MR JUSTICE HOLMAN: What do you say about that, Mr Neill?
47. MR NEILL: My Lord, the claimant resists the defendant's costs application and we would invite your Lordship in this instance to consider making no order for costs on the following basis.
48. Your Lordship found against the claimant on the basis essentially that as a matter of fact the defendant did not directly apply the guidance but merely treated the guidance in this issue as equivalent or analogous and therefore a relevant consideration. My Lord, that issue, (a), became - it only became clear that that was the defendant's case when the defendant's detailed grounds of resistance were filed, including the witness statement of Mark Bamsey, which your Lordship -
49. MR JUSTICE HOLMAN: What was the date of the witness statement of Mark Bamsey?
50. MR NEILL: It was in - off the top of my head, it was in June 2009 of this year.
51. MS SULLIVAN: 19th June 2009, it is signed.
52. MR NEILL: My Lord, that issue was a discrete and separate point to the point previously, and certainly the one raised in the pre action correspondence, which was essentially the one based on reliance of the discretion of a council to raise such charges and, my Lord, the pre action correspondence in relation to this claim is at pages 665 to 669 of the bundle.
53. MR JUSTICE HOLMAN: Well, there are a number of bundles.
54. MR NEILL: It is the second folder.
55. MR JUSTICE HOLMAN: B. 668.
56. MR NEILL: 665. My Lord, it may be worth - if I just give your Lordship time to consider that.
57. MR JUSTICE HOLMAN: You are looking at Plymouth to Pardoes, at the moment, are you, from 8th January?
58. MR NEILL: Indeed.
59. MS SULLIVAN: I have it in a different file, because I did not bring that file with me.
60. MR NEILL: Yes, it should be numbered 665 and the Plymouth City Council's pre action response, 28th January.
61. MR JUSTICE HOLMAN: Well, this is a long letter. Have I got to read the whole of this letter?
62. MR NEILL: My Lord, the short point is that nowhere in that letter - the letter merely refers to the discretion of the Council and nowhere in that pre action letter does the Council -
63. MR JUSTICE HOLMAN: But can we just tackle this from another end. I agree that the outcome of this was to a considerable degree a fact specific outcome and I agree that Mr Bamsey's affidavit, or statement, as it were contributed to my conclusion and approach. I set out at length the express reasons of Plymouth correspondence. I then set out Mr Bamsey's witness statement, yes, 19th June, and in my overall view of the facts, which is really quite shortly expressed, at the end I make reference to and in fact place reliance on Mr Bamsey's witness statement. But, even if in some way Plymouth were putting the case differently earlier than that, you have had the witness statement of 19th June since presumably on or about that date, but continued with the claim. So I do not for the moment see that it makes much difference.
64. MR NEILL: My Lord, I accept that entirely. The claimant did continue to pursue its claim from that point and that was the point at the hearing.
65. My Lord, my only for the purpose of this stage is for your Lordship to take that into account in exercising your general discretion as to costs. The conduct of the parties is a relevant factor and, yes, the claimant did continue to pursue its claim once that factual position or the reported factual position was put forward by Mr Bamsey, but in this instance, my Lord, I would ask you to have regard to the position of Mr Eskell as receiver. What was he supposed to do, faced by an apparent contradiction between the stated position of the counsel in its letter, which your Lordship has found did form the reasoning of the Council, followed by an ex post facto explanation by the author of that policy and in this instance it was, certainly up until 15th June, Mr Eskell had no other option, it seems to me, other than to try and get this situation clarified. The Council at no stage had said we accept that the CRAG guidance does not strictly apply but all we have done is applied the loudest guidance and in that instance, even if your Lordship is not minded to make no order for costs, at the very least in my submission it might be appropriate for your Lordship to consider a reduction of the defendant's costs to reflect the fact that, in the pre action correspondence, right up until the detailed grounds, this point was not raised and it may well have been. If it had been, permission would not have been granted on the papers by - by the -
66. MR JUSTICE HOLMAN: Judge granting it.
67. MR NEILL: By the judge granting it. I do not have the - Philip Mott QC sitting as a Deputy High Court Judge and, my Lord, it may be that your Lordship is not minded to make no order for costs to reflect the fact -
68. MR JUSTICE HOLMAN: Well, I am afraid I am not minded to make no order for costs.
69. MR NEILL: But in my submission it cannot be right that the Council can pay cursory lip service to the pre action letter, to only file - to only rely on Mr Bamsey's statement as dealing with the ground and merely allude to this in summary grounds. It certainly was not on a cursory reading of the summary grounds, it may be that the council is entitled -
70. MR JUSTICE HOLMAN: Well, I am just going to go to the summary grounds. Where do we find them?
71. MR NEILL: It is 674 of the bundle. The -
72. MR JUSTICE HOLMAN: And it is paragraph 18 is probably the most -
73. MS SULLIVAN: My Lord, yes, paragraphs 18 and 19.
74. MR JUSTICE HOLMAN: Well, I mean, this, of course, is a document settled by Ms~Sullivan but that is in essence what her case has remained, is it not?
75. MR NEILL: Well, in my submission it does not say that as a matter of fact the counsel has - there is a discrepancy between saying looking to the guidance and what was advanced as a matter of fact at the hearing, which is that, as a matter of fact the guidance was only treated as equivalent of analogous guidance. But in any event, it certainly was not put that way in the pre action letter and, my Lord, the pre action protocol for judicial review is there for a reason, for issues to be made clear at that stage and for the parties to consider their position and, my Lord, in my submission, the Council's treatment of this issue, in the way that it has done, is contrary to the spirit of that protocol and that I would only invite you to make some -
76. MR JUSTICE HOLMAN: Did Mr Eskell and Mr Bamsey ever sit down and meet over this issue?
77. MR NEILL: My Lord, not so far as I am aware.
78. MR JUSTICE HOLMAN: This is what I have to say I feel is the matter of the upmost regret, quite frankly. I mean, I made the comment which I did obviously with deliberation in paragraph - which you have talked about, no doubt - the end of paragraph 4: "One can only wonder at the cost effectiveness and proportionality of this contest." And I deliberately put it there in what I hope was a completely neutral way, because I seriously wonder about the cost effectiveness and proportionality, both through the eyes of Mr Eskell and separately through the eyes of Mr Bamsey and I just cannot in a way understand, and much regret, it was not possible to make the journey from Bridgewater to Plymouth or Plymouth to Bridgewater and sit down and try and work out where they were misunderstanding each other and/or have a discussion about the figures. Anyway, the fact is there never was a meeting. There was just endless correspondence.
79. MR NEILL: My Lord, Mr Eskell says before me that he did seek a meeting at least with Ms Osbourne, the Council's solicitor.
80. MR JUSTICE HOLMAN: When, roughly?
81. MR NEILL: Before the hearing in this case - before litigation was commenced. I do not know he did not meet her at that stage. But my Lord -
82. MR JUSTICE HOLMAN: I am not - I wish to emphasise - I am not saying that as a sort of criticism directed to Mr Eskell particularly, or specifically. I just do feel that somehow the people concerned in this case allowed their eye to go off the ball, because - I do not know what the Plymouth costs are, it is just a guess figure, is it not, here? Do you have a more accurate figure now?
83. MS SULLIVAN: My Lord, a ballpark figure, it has not been fully posited, but a ballpark figure is 19,000.
84. MR JUSTICE HOLMAN: 19?
85. MS SULLIVAN: Not far off your guess, but a little lower.
86. MR JUSTICE HOLMAN: Well, I said even half that amount.
87. MR NEILL: My Lord, I fully accept your point on this, but what I would say is that the review, request for a review, included expressly this point about CRAG 10.026. The claimant has been criticised up to this point and this was going to be a further submission that I was going to advance. The defendant's - part of the defendant's case up until Ms Sullivan's skeleton arguments, received a skeleton argument, was delay. The defendant was effectively saying, well, you have waited until now to bring this claim, but the very reason for that delay was that the claimant had sought by a detailed letter -
88. MR JUSTICE HOLMAN: To negotiate.
89. MR NEILL: To negotiate and that was in effect
90. MR JUSTICE HOLMAN: Well, I do not think you need in a way address delay now, because it is not a point that was pursued or relied on at the hearing and the fact is we are here and we got here and obviously a lot of costs have been occurred. I think I had better just hear what Ms Sullivan has to say. I am certainly going to give you some of your costs, Ms Sullivan, and I am not going to give them any of their costs. I do not think there is any application that you should pay any of their costs.
91. MR NEILL: My Lord, before you - I do apologise for interrupting Ms Sullivan before she commences, but, my Lord, there is one final matter and it may be a very small matter, but my - your Lordship has already indicated at the end of the hearing that an order for detailed assessment would be carried out. My Lord, the case of Davey v Aylesbury Vale District Council provides guidance as to what would be the appropriate order, or at least the approach of the trial judge, where an order for detailed assessment follows on from unsuccessful judicial proceedings and -
92. MR JUSTICE HOLMAN: Sorry, I am not quite - you say I have already indicated?
93. MR NEILL: My Lord, this is merely because the Court of appeal has -
94. MR JUSTICE HOLMAN: Sorry, what do you say I have already indicated?
95. MR NEILL: That you are minded to make an order for detailed assessment and that is on the basis of a day and a half listing and I ask your Lordship to clarify at the end of the hearing for the
96. MR JUSTICE HOLMAN: Are you on the question of whether I might have performed a summary assessment?
97. MR NEILL: My Lord, no, I am merely raising at this stage that the Court of Appeal in Davey v Aylesbury Vale has suggested that, where at a substantial hearing an order for detailed assessment is made, the judge at the substantive hearing makes it clear or considers whether to make an order differentiating between costs incurred from the permission stage onwards and effectively pre permission costs and what I would invite your Lordship to do, just to make it clear, that, insofar as any order for costs is granted to the defendant, that those do not include effectively the pre permission preparation costs, in other words those costs prior to the acknowledgment of service and service of summary grounds. It may be that the -
98. MR JUSTICE HOLMAN: I thought the main thrust of your argument, you would like me to say no order for costs at all - I do not think that is going to succeed - but the next fallback position, and the main thrust of your argument, is that, at any rate, Plymouth should not get their costs earlier than, say, the statement of Mr Bamsey and, if that were to be the case, that would preclude, because his statement came in after the acknowledgment of service, did it not?
99. MR NEILL: My Lord, yes, 15th June of this year. My Lord, this was, if you would like, a tertiary position, but, my Lord, it is only for the avoidance of doubt that, if you were to award costs in full to the defendant, which clearly the claimant would invite you not to do, to exclude those costs incurred prior to the service of the acknowledgment of service. That did not happen in Aylesbury Vale and it led to - or preparation of the acknowledgment of service, that did not happen in Aylesbury Vale and it led to a whole raft of litigation relating to the costs judge decision that the costs order should include the costs incurred up to what remains pre permission costs, which were not limited to the costs of preparing the acknowledgment of service and grounds of opposition and it is a very minor point, my Lord, and I have no idea if those costs are included, not having seen the Council's schedule of costs, but it is a small point but, given the guidance, of course, in Aylesbury Vale, it thought it may be useful to draw your Lordship's attention to that.
100. MR JUSTICE HOLMAN: I think at the moment what I am going to do is say that you are to pay - first of all, no order as to your costs, and that you are to pay the costs of Plymouth on and after a specified date and that date may be inception, in which case you pick up the lot, it may be some later date, such as date of acknowledgment of service and summary grounds, or it may be some later date such as a few days after receipt by you of the statement of Mr Bamsey. That I think is the parameters. So provided I do it in one of those ways, I hope it will make the outcome clear, would it not?
101. MR NEILL: My Lord, yes. All I would say is that the normal order for costs where the claimant is unsuccessful is that the costs go off from acknowledgment of service onwards and do not include costs prior to that date -
102. MR JUSTICE HOLMAN: Was any order made by Mr Mott? At the moment, I cannot put my hands on his order, although I believe I have at the some stage seen it. I may have it as a loose document.
103. MR NEILL: My Lord, I believe not, but I can check. It is 669A of the -
104. MR JUSTICE HOLMAN: It is been handed up to me. (pause) Well, shall we hear what Mrs Sullivan has to say?
105. MR NEILL: Indeed. My Lord, I am grateful.
106. MR JUSTICE HOLMAN: There is no prospect of my ordering you to pay any part of the costs of the claimant, so you do not need to worry about that. I do not think it has actually been asked.
107. MS SULLIVAN: My Lord, I was proposing to perhaps work backwards from the -
108. MR JUSTICE HOLMAN: You can work whichever way you like.
109. MS SULLIVAN: - the position of - starting off that you should order costs certainly from the date of Mr Bamsey's witness statement and then work backwards to say why it should be earlier than that. What the claimant is saying is that we have somehow not made our position clear as to what our case was. In argument before you, the claimant's case was that we had always put it on the same basis and had not resiled from the letters back in October 2007. So their case at that point was that we had not changed anything and now it comes to costs the argument is that we had. Certainly, they knew what our position was from the summary grounds. You have briefly looked at those at pages 67 - you looked at paragraphs 18 and 19, I think, on page 678.
110. MR JUSTICE HOLMAN: 678, yes.
111. MS SULLIVAN: It is clear there that we are explaining, we say, Crofton does not hold a local authority cannot look to guidance, it holds they are not bound to do so, but the considerations to be taken into account are entirely within their discretion, that has been the defendant's case all along, and in paragraph 19 we understood the claimant to be saying, third line down, the basis of the claim appears to be that CRAG is being applied directly and the defendant is not doing so.
112. MR JUSTICE HOLMAN: The thing is at that point that is assertion, is it not?
113. MS SULLIVAN: It is, but it is - on page 681 - it is an assertion as to what our case is. Again, in paragraph 27, there is a summary of this -
114. MR JUSTICE HOLMAN: I mean, when was the first time you referred to or produced your own fairer charging policy, because that almost, I seem to remember, was just handed up at the hearing.
115. MS SULLIVAN: My Lord, no, it was in the trial bundle.
116. MR JUSTICE HOLMAN: Oh, was it?
117. MR NEILL: The policy of October 2007 was.
118. MR JUSTICE HOLMAN: How long have you had that?
119. MR NEILL: That was included in the evidence filed -
120. MR JUSTICE HOLMAN: No, but that is evidence during the subsistence of the case. Had Mr Eskell had it supplied to him during the dispute?
121. MR NEILL: At no stage. (Pause) It was when the detailed grounds -
122. MS SULLIVAN: My Lord, it was disclosed in these proceedings at the time when the defendant has to disclose any documents on which it relies.
123. MR JUSTICE HOLMAN: All right. So when was that? Well, your detailed grounds are 19th June, I see, which is also the date of Mr Bamsey's statement.
124. MS SULLIVAN: My Lord, yes.
125. MR JUSTICE HOLMAN: So may be on or about that date your detailed grounds, his statement and this material all goes over, is that it?
126. MS SULLIVAN: My Lord, yes, that would - because that is the -
127. MR JUSTICE HOLMAN: Because that document did weigh with me.
128. MS SULLIVAN: My Lord, of course, before that point, in the terms of the litigation, there are - all that the defendant is doing, it is not usual for a defendant to produce documents prior to permission and so it is only after permission that the defendant produces documents. But my point, to take you to page 681 in the summary grounds, which of course are only intended to be summary grounds, had we produced evidence at that point and permission not been given, then the costs of producing that evidence would probably not have been recoverable, because there are limits as to what a defendant is supposed to do at this acknowledgment stage. This is signed by the head of legal services, so, although it is assertion, it is assertion signed by the -
129. MR JUSTICE HOLMAN: I see. It is has your name at the bottom, but it is in fact signed - yes.
130. MS SULLIVAN: As an acknowledgment of service should be, so - and it is also signed with the statement of truth. That summary paragraph on page 27 of that page once again makes it clear that the defendant has the unfettered discretion, it decided to take it into account and explains the basis on which it had done so, and it chose a method which it is entitled to do, and essentially, my Lord, you found in agreement with that.
131. MR JUSTICE HOLMAN: I did, but, I mean, I was much influenced by Mr Bamsey's statement, because, if you just took the letters alone, that is the October 2007 in particular, if that just stood on its own without being properly considered in the context of your own fairer charging framework and then the explanation of Mr Bamsey, one can see how Mr Eskell and those surrounding him thought, well, you are just blindly applying CRAG.
132. MS SULLIVAN: My Lord, the claimant has asked for costs on the basis that, up until, they say, the detailed grounds they did not know that we were not blindly following CRAG. We made it perfectly clear in the summary grounds that we were not blindly following CRAG -
133. MR JUSTICE HOLMAN: Well, you asserted.
134. MS SULLIVAN: We asserted that, but signed with a statement of truth. In the litigation process there comes a time before the witness statements and we did not do it before that because that was the time before it.
135. MR JUSTICE HOLMAN: I suppose in practical terms the costs difference between the submitting of the summary grounds, sometime shortly after the 19th March, and the submitting of the detailed grounds and Mr Bamsey's statement, and any accompanying documents, is really the costs of preparing those documents. I do not suppose much else happened in the litigation, did it? I mean, obviously Mr Mott was busy but that would not cost any of you anything.
136. MS SULLIVAN: No. It would be preparation of those documents.
137. MR JUSTICE HOLMAN: It is the cost of the preparation of those documents. So before we get too hung up on it we just need to keep that sense of proportionality.
138. MS SULLIVAN: My Lord, yes, although of course those documents are in some ways, I would say, apart from the hearing, will be the largest cost in the case so far as the defendant is concerned.
139. The other point, my Lord, to bear in mind is, of course, that, even having seen those documents -
140. MR JUSTICE HOLMAN: They have ploughed on.
141. MS SULLIVAN: They ploughed on. So, my Lord, even if they had had -
142. MR JUSTICE HOLMAN: That is of course a point that I myself put to Mr Neill. It is always sounds a powerful point: well, it did not make any difference to you because you ploughed on anyway. On the other hand, a litigant make take a rather different decision once they feel they are already deeply into the litigation - you know, we have got this far so we had better plough on - especially as they have the benefit of Mr Mott's decision, than what they might have done if they had had the material at the outset.
143. MS SULLIVAN: But, my Lord, the process of litigation from the defendant's point of view is that the summary of grounds contesting the claim is put in in order that the claimant knows what the defendant's case is, it is signed as a statement of truth, that was done and that sets out the defendant's case. I accept obviously there is more detail fleshed out later, but that is the process of litigation.
144. MR JUSTICE HOLMAN: Mr Mott thought it was an arguable case at that point.
145. MS SULLIVAN: My Lord, yes, although without wishing to -
146. MR JUSTICE HOLMAN: It is quite different, is it not, for a claimant, especially a professional claimant acting for a patient, to make a decision to throw their hand in at the very moment when the judge has said there is an arguable case here.
147. MS SULLIVAN: Well, my Lord, there is - on receipt of permission, the order always says that the claimant should keep under review - particularly after the receipt of detailed grounds, they have to review the case. Having reviewed the case, they have continued on.
148. MR JUSTICE HOLMAN: You are home and dry, really, after receipt of detailed grounds, as I more or less indicated. I mean, roughly that date, allowing a bit of time for consideration.
149. MS SULLIVAN: My Lord, I said that that should certainly include the preparation of those detailed grounds, because at that stage of the litigation that is when the detail of the defendant's case is supposed to be given. It is not supposed to be done at the summary stage, that is supposed to be a summary grounds, and, my Lord -
150. MR JUSTICE HOLMAN: Well, the purpose of the summary grounds is as much as anything directed to the court to assist the court in the decision whether or not to grant permission and the point at which a claimant did really face up with this is our case and the evidence in support of our case, it is not that point but it is the later point.
151. Well, I do not think we should spend a disproportionate amount of time on this. I am going to give you your costs from shortly after the date of the detailed grounds and the Bamsey statement. These were dated 19th June, which was the Friday, probably with Plymouth having put them in and did not do much else for a period anyway. I do not know when Mr Eskell and Pardoes got this material but presumably shortly after 19th June.
152. MS SULLIVAN: My Lord, I am hesitating coming back, but I would ask for the costs of preparing those documents, because the claimant well knew what the defendant's case was from the summary grounds. That is in essence -
153. MR JUSTICE HOLMAN: Well, I think you are coming back. You are merely putting the same point. I mean, you are saying the costs of preparing those documents. You are asking me to advance to earlier the date from which your costs were run -
154. MS SULLIVAN: My Lord, yes.
155. MR JUSTICE HOLMAN: - which is the same point -
156. MS SULLIVAN: It is the same point but -
157. MR JUSTICE HOLMAN: I have made my mind up, I think, Ms Sullivan. We have had half a hour on this. When did Pardoes receive this material?
158. MR NEILL: My Lord, it is two days. It was served on us in accordance with the time frame.
159. MR JUSTICE HOLMAN: Well, then the order as to costs will be no order as to the costs of the claimant of and incidental to these proceedings. The claimant must pay the costs of Plymouth of and incidental to these proceedings on and from 26th June 2009 to be the subject of detailed assessment if not agreed. No order as to the costs of Plymouth before that date.
160. In approaching the question of costs, I do agree with the observation of Mr Neill that my judgment treated this to a significant degree as a fact specific outcome. It did seem to me, and continues to seem to me, that, if the letters of 16th October 2007 and 16th December 2008 stood alone, the way in which Plymouth approached this matter was not made sufficiently clear to Mr Eskell.
161. I accept the submission of Ms Sullivan that the summary grounds of Plymouth go a long way to correcting any misunderstanding, in particular paragraphs 18 and 19 of that document, but it does seem to me that the pivotal document became the witness statement of Mr Bamsey himself, which is dated 19th June 2009 and was simultaneous, as it happens, with the defendant's detailed grounds which were also signed on that date.
162. It is not easy for a claimant, particularly when acting on behalf of a patient, to take a robust decision to discontinue their claim at the precise moment when a judge has granted permission and taking the view that the claim is at least arguable. So, in the period between the summary grounds, dated 19th March, and the detailed grounds, dated 19th June, it does not seem to me that Mr Eskell and the claimant could reasonably be expected to have reappraised their claim. However, once they had the detailed grounds, and more particularly the statement of Mr Bamsey, then it seems to me there should have been a thorough and objective review of the way forward. There has been no relevant new evidence since the date of Mr Bamsey's statement and, on the basis of the evidence as it stood at that date, I have reached the conclusion that I have as expressed in my substantive judgment. So it seems to me that, from the time of the detailed grounds and Mr Bamsey's statement, the claimant really must pay the costs of Plymouth. I give a small amount of latitude of one week to allow for receipt of those documents and some opportunity to consider them.
163. For those reasons, I propose to order that there be no order as to the costs of the claimant of and incidental to these proceedings but the claimant must pay the costs of Plymouth of and incidental to these proceedings on and from 26th June 2009 to be the subject of detailed assessment if not agreed, but no order as to the costs of Plymouth before that date.
164. Can counsel kindly assist the associate, if she seeks assistance, in drafting a full order? It might be best, and most helpful, if you could draft it and lodge it by email with today's associate. Could you do that?
165. MR NEILL: My Lord, I will be more than happy to liaise with my Lord's clerk and send it in.
166. My Lord, I am very grateful for your judgment on costs. My Lord, my instructions have been to seek permission to appeal. I am fully cognisant of your recent judgment on costs as to the basis of your substantive hearing being a fact specific judgment, but, my Lord, the basis of seeking permission to appeal at this stage is on the interpretation of Crofton as to whether Crofton could be interpreted as meaning the guidance is irrelevant in any -
167. MR JUSTICE HOLMAN: I am very, very clear that if the Court of Appeal think they need to reconsider Crofton or explain what they meant in Crofton, that is a decision for them. In the Administrative Court is there a special form for the judge to be fill in refusing permission to appeal? (Pause)
168. I think what we will just do is go an ask my clerk to go and make a photocopy, so I am not writing on quite so creased a document. If you do not mind waiting a moment. (A short break)
169. MR JUSTICE HOLMAN: I think it is substantially the same as the forms we use, so I will just cross out where it says Family Division and write Administrative Court. (Pause)
170. So I have said nature of hearing: JR decision of local authority to take into account personal injury, damages, income. Result of hearing: claim dismissed. Claimant's application for leave to appeal refused. Reasons: in my view this is ultimately a fact specific case which does not raise issues of general public interest or as to the scope or application of Crofton. Disproportionate costs have already been incurred.
171. So I will refuse for those reasons. At a critical moment I have neither an associate nor an usher. Only I want to photocopy this so you have it. Just hang on. (A short break)
172. MR JUSTICE HOLMAN: Right. Would somebody like to take all this away. I do not suppose you would like to, but would you kindly?
173. MS SULLIVAN: My Lord, yes. My clerks will arrange for collection.
174. MR JUSTICE HOLMAN: Well, if you get it away from here to somewhere outside from which they can collect it. The trouble is there is not going to be anybody else in here all day, I think. So, as soon as my clerk comes back with photocopies of the refusal of permission document, I think that will conclude it, will it not?
175. MR NEILL: My Lord, I am grateful. (Pause)
176. MR JUSTICE HOLMAN: All right. Is there anything else which now arises, Mr Neill?
177. MR NEILL: My Lord, no.
178. MR JUSTICE HOLMAN: Ms Sullivan?
179. MS SULLIVAN: My Lord, no.
180. MR JUSTICE HOLMAN: Well, I am grateful to you both for coming over again this morning. I am very grateful to Mr Eskell for coming out again. I would just like to emphasise that there is importance in the postscript in the last paragraph and whether or not Mr Eskell wishes to pursue a possible appeal is of course a matter entirely for him and nothing to do with me, but I would imagine that he will be getting on, if he has not already, to Mr Bamsey and ramming home the last paragraph and so can we now look forward and not backwards and see where all this is going.
181. All right, well, thank you very much indeed. So if you can just take those.