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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 >> Nursing and Midwifery Council v Hitchenor [2012] EWHC 3565 (Admin) (23 November 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3565.html Cite as: [2012] EWHC 3565 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		23 November 2012

1. MR JUSTICE STUART-SMITH: The respondent was employed as a registered nurse by Calderdale and Huddersfield NHS Foundation Trust and later at Fieldhead Park Nursing Home by Roche. He is the subject of referrals and allegations which relate to his health. The case first came before an Interim Orders Panel of the Investigating Committee on 26 November 2010. An interim suspension order was made on that date for 18 months. It has since been reviewed on six occasions, the last being on 31 October 2012. The order was previously extended by the High Court on 14 May 2012 and is due to expire on 24 November 2012. The case is now in the process of being scheduled for a substantive hearing and I am told that it has been scheduled for 5 February 2013. By this application the applicant Council seeks a 6 month extension of the interim order imposed on the respondent's registration by the Investigating Committee on 26 November 2010.
2. The jurisdiction to make the order in the first place arises under Article 31(2) of the Nursing and Midwifery Order 2001. The jurisdiction arises where the Practice Committee is satisfied that such an order is "necessary for the protection of members of the public, or is otherwise in the public interest or is in the interests of the person concerned".
3. The present application is made under Article 31(8) of the Nursing and Midwifery Order 2001. By Article 31(9) the order provides that on such an application the court may extend (or further extend) for up to 12 months the period for which the order has effect. It is not open to the court to substitute a different form of order, for example an order imposing conditions on registration rather than interim suspension. It is open to the court to extend the order for a shorter period than that requested by the Council.
4. The principles to be applied by the court upon such an application are analogous to the principles set out in the case of General Medical Council v Dr Stephen Chee Cheung Hiew [2007] EWCA Civ 369. Summarising the criteria as there set out, the relevant factors in considering whether to grant an extension include the gravity of the allegations, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and prejudice to the practitioner if an interim order is continued. It is common ground that the onus to satisfy the court that the criteria are met is on the regulatory body, in this case the Council. It is not the function of the court to make findings of primary fact. The court is required to ascertain whether the allegations, rather than their truth or falsity, justify the prolongation of the interim order. In general, the court need not look beyond the allegations. However, in Hiew the court also made clear that the court is not to act simply as a rubber stamp but must examine the evidence before it with care.
5. The underlying facts which gave rise to the allegations can be shortly stated. I take them from the witness statement of Miss Bird of the Nursing and Midwifery Council. The first referral arose after the respondent was investigated and subsequently dismissed by the Calderdale Huddersfield NHS Foundation Trust for removing and self-administering an unknown quantity of Tramadol whilst on duty between July 2008 and January 2009. When the respondent was interviewed as part of the Trust's investigation he initially denied any involvement in the theft but later admitted taking a strip of 20 Tramadol tablets every other day for a period of 6 months. The second referral arose when the respondent was working at the nursing home to which I have referred. He telephoned his Human Resources Manager, Linda Pritchard, and told her that he had been taking Tramadol at home. He subsequently admitted that he has stolen and ingested whilst on duty 30 50 milligram capsules of Tramadol from a drug treatment room. When the matter was looked into it turned out that 64 capsules were missing. The matter was referred to the police and the respondent subsequently received a caution for theft on 30 April 2010.
6. The first referral was received in May 2009 and was considered by the NMC's Investigating Committee in September 2009. The second referral was received from Roche Healthcare Ltd in May 2010. In June 2010, the respondent self-referred himself regarding that matter. A psychiatric report requested by the Investigating Committee was obtained in August 2010. In November 2010, both referrals were considered by the Investigating Committee and the panel requested that an investigation be conducted into the allegations against the respondent. External solicitors were instructed to conduct this investigation, which took approximately 5 months to complete. Following the completion of that investigation in May 2011 the case was reviewed by NMC's in-house Regulatory Legal Team, when it was confirmed that the case could return to the Investigating Committee. In June 2011, the case was considered at a meeting of the Investigating Committee, who referred the respondent to the NMC's Health Committee. A further review by the Regulatory Legal Team was completed in July 2011, when it was identified that further medical consents would be required and a further psychiatric assessment conducted.
7. Thereafter, regrettable delays took place. A request was made in July 2011 for the case to be scheduled for a meeting of the Health Committee, when it would be decided whether the matter should be determined at a hearing or at a meeting, and appropriate directions would be made. However, for reasons which are frankly admitted not to be clear from the case records, the case was not considered in the Health Committee meeting until 19 November 2011. On that occasion the Health Committee was unable to consider the case due to a lack of time. The case was rescheduled for a Health Committee meeting on 16 December 2011. On that date the panel referred the case for a hearing and directed that up-to-date medical evidence be obtained, including a request that the respondent undergo hair follicle and blood testing. Hair and blood testing results were received in January 2012, as was an updated report from the respondent's substance misuse team. In February 2012 an updated report from the respondent's GP was received. The respondent underwent a psychiatric assessment in March 2012 and a report was received in April 2012. Thereafter it is said that attempts were made to schedule a substantive Health Committee hearing either in July or August 2012. However, the NMC was unable to schedule a final hearing and, as the witness Miss Bird says, it seems that the issue was not followed up.
8. In due course, on a date which does not appear from the papers, the case was reallocated to Miss Bird's case load. She conducted a review of the case and identified that the scheduling of the final hearing remained outstanding. When she made her statement on 5 November 2012 the NMC was still in the process of scheduling the final hearing. However, as I have said, the hearing has now been scheduled for 5 February 2013. It is therefore apparent that there has been regrettable and on the face of it unjustifiable delay in bringing this matter to a conclusion.
9. In May 2012, as I have already mentioned, the court extended the order to 24 November 2011. On that occasion it is clear that the court was told that the Council expected to conclude the case altogether within the 6 month extension sought. The respondent consented to that extension. However, in August 2012 the Royal College of Nursing wrote to Miss Bird on behalf of the respondent as follows:

"As previously explained we were under the impression that this matter was likely to be listed for final determination in August or September this year. You will be aware that the Council had to apply to the High Court for an extension of the current interim suspension order. At that time you informed the Court that you expected this matter would conclude within six months. Please note that if the matter is not listed within that time frame and the NMC are forced to apply to the High Court for a further extension, Mr Hitchenor will not consent to the extension as there is no good reason as to why this matter cannot be listed as soon as possible."

10. By this application the Council seeks to justify the extension of the interim suspension order on the grounds that it is necessary for the protection of the public and is otherwise in the public interest and in the respondent's own interests. By its written skeleton argument and also in submissions today the case for the Council is placed firmly on the basis that there remains a risk arising out of the respondent's current condition, which risk justifies the extension of the order. It is therefore necessary to look at the material before the court which goes to the question of risk.
11. There is no doubt that at the time of the events which led to the initial imposition of the suspension order the respondent was addicted to Tramadol and his addiction had led to theft of Tramadol from his employers. On 26 November 2010, when the interim suspension order was imposed, there was evidence before the Investigating Committee which led the Chairman to say, with full justification:

"The panel has taken into account the registrants explanation for the circumstances which led to his stealing drugs from the workplace. It heard that the drugs in question were meant for disposal and not prescribed to any patient so none was deprived. However the proper disposal of drugs is subject to strict procedures and as the nurse in charge he was responsible that they were followed. Not to do so is a severe breach in the trust in a nurse acting in such a way.

The panel has taken into account all the medical reports and the information regarding the treatment he is receiving. It wishes the registrant well in his endeavours to deal with these issues. However the panel considered that given the stress that is inevitably faced in the settings that a nurse encounters the risk of repetition is high. Although there is no information in front of the panel that suggests that any patients were harmed or has brought into question the registrant's clinical skills, this behaviour if continued does pose a risk to the public as a nurse must be able to be trusted that they are dealing appropriately with controlled drugs. This makes an interim order necessary."

12. A year later, on 27 October 2011, the Royal College of Nursing wrote to the Fitness to Practice Panel of the Nursing and Midwifery Council pointing to a report from Lisa Walker, Substance Misuse Practitioner at Lifeline Kirklees, which confirmed that Mr Hitchenor had "turned his life round" and that he was making excellent progress. That was what the report from Lifeline Kirklees stated. In addition, the report stated:

"Daniel also completed the Lifeline Peer Education course successfully on 01/07/11. Upon completion of this course, Daniel was interviewed for the role of Volunteer Peer Educator and was successful. On 5 October 2011, Daniel commenced his new role as Peer Education Support Worker, working two days a week. This role entails supporting Service Users who are undertaking Level One Peer Education Course, who are in treatment in Lifeline. This role is in conjunction with his role at Gateway to Care.

Over the last 18 months Daniel has turned his life around immensely and is an extremely motivated individual. I believe that Daniel will complete his treatment journey successfully, and make a full recovery."

13. On 17 January 2012, a further report was provided by Lifeline Kirklees. That report confirmed that the respondent had provided consistent negative toxicology since February 2009, testing positive for Methodone only, and then Subutex only since November 2010 to the present date. It spoke eloquently of the progress that the respondent had made, describing that he was now working as a volunteer with Gateway to Care with the role that entailed. It said that he had been allocated a new key worker in March 2012 at Lifeline and that since that time he had continued to engage and stay committed to his treatment journey and personal development. It said that he had been awarded a Kirklees Adult Learner Award for his excellent work in advice, guidance and information sharing in his role as a peer educator at Lifeline. It reported that he had now begun to apply for positions in the substance misuse field. The provider of the report said:

"I feel it is only a matter of time before he secures a role in this sector, as his previous attempts have seen him reach the latter stages of selection."

14. On 14 February 2012, a report was provided by the respondent's GP. In that report the GP referred to him having withdrawn from alcohol with support in the summer of 2010 and that in August 2011 it had been noticed that he had had no alcohol for a year. The GP concluded:

"As a GP and non-specialist, I am always cautious of expressing too strong an opinion on such things as the fitness to remain on your register. However, Mr Hitchenor certainly has made significant progress over the past couple of years, and even before that time, as far as I can tell, was always honest with me about both his successes but also his failings with regards to his main issue of the substance misuse. I would certainly say with confidence that in his present state he is more fit to remain on the register than he was a couple of years ago."

15. A psychiatric report was prepared and was dated 3 April 2012. It was provided by Dr Jarman, a consultant psychiatrist. In the course of his report he referred to results carried out by Trimega Laboratories from blood and hair samples, dated 20 and 23 January 2012, which had been negative for the presence of all controlled substances for which requesting was requested. In his opinion section, Dr Jarman wrote at paragraphs 10.1 to 10.3:

"Mr Hitchenor's personal history / medication history has not changed since I last reviewed him in July 2010. However, Mr Hitchenor informed me that he has taken great steps since last seen. He has not had an alcoholic drink or used tramadol (opiate based pain analgesia) for two years. Mr Hitchenor has had his medication switched to Subutex, he is now taking a low dose of this medication which is reviewed on an ongoing basis by a nurse prescriber. Mr Hitchenor continues to have regular reviews at Lifeline. He sees his Key Worker approximately once to twice a week. It appears that he is no longer having any in depth work in relation to his issues in relation to addictions ... He will shortly attend an interview as a Support Worker to help individuals with addiction problems secure voluntary placements for Kirklees Council. Mr Hitchenor is confident that he will be successful in this interview, he would however, like to broaden his options if he was to regain his PIN number with the Nursing and Midwifery Council in working again with individuals with specialist addiction needs. Mr Hitchenor spoke of how he has not ruled out working for the NHS in the future in a nursing capacity.

...

Mr Hitchenor displays good insight into the issues that resulted in him developing dependency issues. He has engaged well with addictions services Lifeline and complied with regular investigations. Recent tests in relation to alcohol consumption and opiate usage have proved negative."

It is to be noted that there is nothing in this report expressing as Dr Jarman's opinion that there is a continuing risk such as justified the initial imposition of the interim suspension order.

16. To complete the picture, further forensic tests on blood and hair were carried out and are evidenced by witness statements dated 6 July 2012 and 10 July 2012. All such tests were negative. Finally, today the court has been given an updated report from Lifeline Kirklees which concludes:

"Daniel has been committed to his treatment throughout and remains an inspiration to others who are just beginning their treatment journey."

17. If there were any evidence of current or recent substance abuse I would hold that the continuation of the order was necessary and justified. In particular, the ruling on 26 November 2010 cannot be criticised and provided a sufficient basis for the suspension order then made but the position has now changed. On all of the evidence the respondent is presently clean and has been clean since 2010 and there is a powerful body of evidence to show that he has turned his life around and has become, as is evidenced by Lifeline Kirklees, an inspiration to others who are setting out on the journey from addition to normality again.
18. In that state of the evidence I turn to apply the criteria as summarised in the claimant's skeleton at paragraph 9. First, the gravity of the allegation. The allegations are being pursued on the basis of the respondent's health. That does not mean that the fact of the thefts can be completely ignored because it is the state of the respondent's health at the relevant time which was precisely what led him to commit the thefts. Secondly, the seriousness of the risk of harm to patients. As I have already indicated, there is no evidence in Dr Jarman's report to support a finding of present risk. On all of the evidence, the risk, if it still exists at all, has significantly and substantially reduced. Mr Pretty for the Council submits that to allow him to obtain employment again in the field of nursing would put him directly in the way of temptation. That is in one sense true but that must be set against the reports on his progress which speak eloquently of his motivation to retain his present clean status and the fact that he has, on the evidence, managed to remain clean of all substances, including alcohol, for at least 2 years. To the contrary, there is no supporting evidence that the risk is significant given the progress he has made. A further feature which weighs in the balance of risk of harm to patients is that if he were to apply for a job involving contact with patients in particular, he would undoubtedly have to disclose the pending proceedings in any such applications. Furthermore, if he were to apply for any job in the nursing sector, checks would undoubtedly be made that would reveal the caution, so that the facts giving rise to the current investigation would undoubtedly come out. What weight an employer could place upon the fact of the caution is a moot point but it is obvious that the facts would come out. As I am reminded by Mr Lynch, the evidence is that when he applied to Roche he did as a matter of fact disclose the facts as they then stood. It therefore seems to me, looking at this criterion, that there is an absence of any evidence of serious risk of harm to patients at present.
19. The next question is the reasons why the case has not been concluded. Those reasons are unsatisfactory, as I have already outlined. The case should have been concluded by now and it is no fault of the respondent that it has not been. The net effect is that he has been the subject of an interim suspension order for over 2 years already. Turning to the question of a prejudice to the practitioner if the order is continued, it seems to me that in the context of this criterion it is to be noted that this is a man who despite his previous vulnerability has made enormous strides such that the continuing existence of the suspension order can properly be said to be prejudicial to him in his continuing journey towards normality.
20. Bearing in mind that the onus of satisfying the court that the criteria have been met is on the regulatory body, I conclude that the Council has failed to satisfy that burden in this case. I was tempted, as an administrative measure more than anything else, to extend the order for a short period, given that it runs out this weekend, so that, if so advised, the Council could gather further evidence as to risk and come back before the court. However, having reviewed the criteria and the present state of the evidence, it seems to me that that course is not justified. The present position is simply that the extension of this order is not shown to be necessary either for the protection of patients or in the public interest. I therefore decline to make the order sought.
21. MR LYNCH: My Lord, can I address you on the question of costs. There is an application for costs in this matter. Your Lordship will be aware that the case law governing such applications makes it clear that the applicant in this case, the Council, is not to be treated as any other party to civil proceedings. The relevant case is Baxendale-Walker, and I believe my learned friend has a copy which can be handed to your Lordship.
22. MR JUSTICE STUART-SMITH: You say I am aware of that, I would not be too sure about that.
23. MR LYNCH: My learned friend has a copy. In short -- and I will can be corrected by my learned friend if my summary is incorrect -- the courts are required to acknowledge that regulatory bodies such as the NMC have a special role and they should not be discouraged from making applications of this sort by a costs orders against them unless they have acted improperly or in bad faith. I am not suggesting in his case that the NMC has acted in bad faith. However, as your Lordship has put it, there has been regrettable and unjustifiable delay in this case. The only reason that we are assembled at this court today is because of that delay. Therefore it is open to the court to find that the NMC has acted improperly, in that they have fallen short of the standard which they should meet as a regulator.
24. MR JUSTICE STUART-SMITH: Do I see a reference to improper in Baxendale-Walker?
25. MR PRETTY: It is paragraph 39, my Lord, which should be the last page, page 10. It is the sixth line down.
26. MR JUSTICE STUART-SMITH: So that is paragraph 38, no automatic order. 39, six lines down:

"Unless the complaint is improperly brought, or, for example, proceeds as it did in Gorlov, as a 'shambles from start to finish' ... "

(A short pause)

So it is paragraphs 38 and 39.

27. MR LYNCH: My Lord, yes. Can I draw your Lordship's attention in particular to the penultimate sentence of paragraph 39.
28. MR JUSTICE STUART-SMITH: "For the Law Society ... "?
29. MR LYNCH: Yes:

"For the Law Society to be exposed to the risk of an adverse costs order simply because properly brought proceedings were unsuccessful might have a chilling effect on the exercise of its regulatory obligations, to the public disadvantage."

30. There are two points to emphasise, my Lord. The first is that these were substantive proceedings and therefore different, in my submission, from proceedings at the interim stage. The second point is this: a costs order in a situation such as is this where there have been lamentable delays on the part of the applicant would not have a chilling effect on their ability to exercise their regulatory function but, rather, might have a salutary effect, and they might in the future, one hopes, seek to prosecute, investigate and review matters expeditiously, as they have not done so in this case. So if one examines the rationale of Baxendale-Walker, it can be shifted and therefore an order can be made in a case such as this because of the effect it will have on the regulatory body.
31. MR PRETTY: My Lord, the application for costs is opposed on behalf the applicant. My Lord, I say that, perhaps, on a twofold basis. Firstly, considering the test that in Baxendale-Walker, which I think is agreed by my learned friend, it is a high threshold --
32. MR JUSTICE STUART-SMITH: This noise is pretty intolerable. You are just simply going to have to shout.
33. MR PRETTY: My Lord, forgive me if I do and it stops. It is twofold, effectively, in relation to this. Firstly, in the judgment of Baxendale-Walker, it is a high threshold that an appellant in substantive matters has to meet but, in my submission, my Lord. Furthermore, in the circumstances of this case it would not be proper for costs to be ordered, especially in light of that threshold. Dealing first with some points raised by my learned friend. Yes, Baxendale-Walker does deal with substantive proceedings. My Lord, that does not get away from the fact that the ultimate purpose of all of these applications before this court, whether opposed appeals or an application of this nature, is the primary function of public protection that the regulatory body has and therefore it ought not to give rise and not be permitted to place that at risk really because of the idea that costs could ensue.
34. So, my Lord, it is not, in my submission, an entirely separate nature of the beast, it is the same considerations that run throughout the matter of regulatory proceedings. Furthermore, although these are interim proceedings, an order has been deemed necessary by a Practice Committee of the applicant to continue on two occasions in the interim. Therefore, my Lord, to not make such an application would, in effect, especially when one takes into account financial considerations, be, in one way, usurping the power of an independent committee through that of the applicant themselves because --
35. MR JUSTICE STUART-SMITH: That is nonsense. The powers of a committee and the powers of the court are different, and the Council knows that if it comes before the court it is going to have to satisfy the court, and, as your skeleton made absolutely clear, the court has not simply to rubber stamp but to carry out its own investigation. That is what I have done, and there are two stand out features in this case: one is unacceptable delay and the other is the fact that, for whatever reason, the Council has come before the court with no evidence of present risk at all. So why in those circumstances should the respondent, who gave you full warning that you would not have any further consent, not have the costs of Mr Lynch coming in order to make that position good?
36. MR PRETTY: My Lord, that is why I refer to the second part of circumstances of this matter and those two reviews. If as the application has been resisted today on the basis that the order is not necessary, there have been two occasions since the extension for Mr Hitchenor or his representatives to make representations to a practice committee, which, in my submission, is the appropriate forum because of the powers that they have and the expertise that they have to assess whether or not it is necessary to continue --
37. MR JUSTICE STUART-SMITH: But my difficulty, Mr Pretty, is that I do not have any evidence about what happened or what persuaded the Committee to make the continuation of those orders. You could, if you wanted to, have put before the court, to assist the court, a transcript of the previous proceedings and that might have changed my mind but you did not. To suggest that the court is somehow in a secondary position, granted the panel has got expertise which I do not have but the court's function is absolutely clear and given that the court does not have its own medical expertise, it is incumbent upon the Council to put evidence before it, and you have not done that.
38. MR PRETTY: My Lord, on the point of the transcripts, the situation, given the constraints that the regulatory body work under, is that transcripts are no longer kept of those reviews, they are dealt with by reasoned decisions of the panel. I accept that those are not before the court but the reason I raise it, my Lord, is, effectively, this: that on those reviews the panel could have had such representations made to them. If they came to the same conclusion as your Lordship, given your Lordship's conclusions they may well have done, then we would not be in this situation today. So my submission is that this is not only reason we are here. Yes, one of the main factors we are here today is the delay but it is not the only reason in that regard. The first review took place in August. Given that hearings require 28 days' notice, the first review, it would have been clear at that stage that the hearing was not going to take place in August, communication merely stated that neither the respondent nor his representatives would be attending. The same was done on the occasion in October, when it was, of course, by that point, in my submission, patently clear that the hearing was not going to take place in the timeframe that was originally envisaged. It was clear that there was information before the panel on those occasions: the July report would have been before the panel, as indeed was any further documentation that had taken place in the interim. It is open to the representatives, even if they were not to attend, to make written representations on this matter, and each review, in accordance with the rules and the order, is a comprehensive review of the necessity of the order continuing, and, of course, panels are -- and I am somewhat hampered in that decision when registrants do not attend to give submissions or evidence before them. Given the position in Baxendale-Walker, it cannot be right that a party do not attend those reviews, not make those representations to the Practice Committee and then ask for costs at the court. My Lord, in my submission, that does not sit appropriately, given the dicta for cooperation throughout proceedings. If the respondent or his representatives had attended on both of those occasions, if they had made representations and the panel had taken a decision not to continue the order in its current form then I concede that my submission on costs would be entirely different. My position may not be entirely different in that regard but we are not in that situation. This is not a case where the necessity of the order has been questioned on two previous occasions before a panel of the Practice Committee but it is a situation where the representatives have waited until today's date to come before this court and then ask for costs. My Lord, in those circumstances and given threshold in Baxendale-Walker, I submit that it would not be appropriate for costs to be awarded against the applicant. Unless I can assist further.
39. MR JUSTICE STUART-SMITH: No, thank you.
40. MR LYNCH: Can I address one thing, my Lord?
41. MR JUSTICE STUART-SMITH: Not unless you want to dissuade me from making a costs order in your favour.
42. MR LYNCH: I do not want to, my Lord.
43. MR JUSTICE STUART-SMITH: The respondent applies for an order for his costs of today. It is common ground that the principles to be applied are to be derived from the decision of the Court of Appeal in Baxendale-Walker v The Law Society [2007] EWCA Civ 233. Without reading it into the judgment, my attention has been drawn directly to paragraphs 38 and 39 of Baxendale-Walker, which make absolutely clear two things: one, orders for costs should not be made against a regulatory body simply because they have lost; and, secondly, that the court should be astute to ensure that it does not impose a chilling effect upon the regulatory functions of the regulatory body by making adverse orders for costs. Despite that, in my view, an order for costs is merited in this case. Mr Pretty points quite rightly to the high threshold that must be passed and he points to the primary function of the Council in this regard as being public protection. He submits that the submission that the interim suspension order should not be continued could and should have been made to the panel on one or both of the two reviews since May. I reject that submission for the following reasons. First of all, I do not know what in fact led that Committee to continue the orders on those two occasions. Secondly, the respondent gave clear notice to the Council that he would take issue against continuation if we got to November. It does not follow from that that he was under any obligation to take issue before then. Thirdly, the Council knew, as I have already indicated in my main judgment, that precisely because the court does not have the same specialist medical expertise as the panel, it was necessary to provide evidence to justify the continuation of the order on this application, and that was not done. In my judgment, the contrary features outweigh any reserve that one should have, and I make it clear that I am not making a costs order simply because the Council has lost. The circumstances here are that there was no justification put forward for the delays which have occurred. Secondly, the May order was obtained on the basis that the proceedings would be concluded in 6 months. Thirdly, there is no reasonable explanation as to why they have not been concluded in that 6 months. Fourthly, no evidence was put before the court to support the assertion of continuing risk. So I do not make an order simply because the Council has lost, nor would I accept that making an order in this case has any chilling effect on the Council on carrying out its regulatory functions. In the light of the August letter, it seems to me that it would be quite wrong in the circumstances that I have sought to outline in my judgment and now in this short judgment on costs not to make an order for costs in the respondent's favour. Costs to be assessed if not agreed. Have you submitted a schedule?
44. MR LYNCH: I have a submitted a schedule.
45. MR JUSTICE STUART-SMITH: Do you want me to look at it? Because I have not seen it.
46. MR LYNCH: I have given a copy to my learned friend. Unfortunately, the copy I have for the court is unsigned. I was sent a signed copy by email this morning.
47. MR JUSTICE STUART-SMITH: So you can assure me that there is a signed copy.
48. MR LYNCH: My Lord, yes.
49. MR JUSTICE STUART-SMITH: Mr Pretty?
50. MR LYNCH: My Lord, given that the figures are not unusual amounts of hours spent, I have no issue with the figures.
51. MR JUSTICE STUART-SMITH: Costs summarily assessed in the sum of £1,917. Thank you very much.