Case No. . CO/9387/2011 
Neutral Citation Number: [2013] EWHC 1000 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 17 January 2013
 
B e f o r e: 

HIS HONOUR JUDGE SEYS LLEWELLYN, QC
(Sitting as a Deputy High Court Judge)
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Between: 
THE QUEEN ON THE APPLICATION OF FARRELL 
Claimant

v 

INVESTIGATING COMMITTEE OF THE ARCHITECTS REGISTRATION BOARD 
Defendant 
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Ms K Livesey (instructed by Richard Wilson Long) appeared on behalf of the Claimant 
 
Mr A Solomon (instructed by Russell Cooke) appeared on behalf of the Defendant 
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J U D G M E N T 
1.	JUDGE SEYS LLEWELLYN:  The question which arises in this case is this: where the court has disposed of a judicial review application refusing permission, but directing that the parties make written representations on costs, and subsequently makes an order for costs, is there a right to the disappointed party to apply to the court to set aside or vary the order for costs which has been made?  The claimant says that there is such a right, the defendant that there is not.
2.	The short background to this is that in this case a claim was lodged by Mr Farrell, the claimant, seeking relief against the Architects Registration Board.  On the same date that he issued that claim the defendant indicated that it proposed to refer the matter in issue for consideration and ultimately that has led to the relief which Mr Farrell sought.
3.	The order in this case was made by Karon Monaghan QC sitting as a Deputy Judge of the High Court, namely, refusing permission, and giving directions as to costs representations.  
4.	In the ordinary way, having refused permission, the notes of the claimant on the form indicate that if he requested the decision to be reconsidered at a hearing in open court, he must complete and serve the enclosed form, that going as to the refusal of permission.  The directions were, by way of order, that the claimant was to file and serve written submissions setting out succinctly within seven days of service of this order why he says he should be entitled to the costs of this claim, and that the defendant was within seven days of service of the order to file and serve written submissions setting out succinctly why it says it should be entitled to the cost of these claims, and recording that there had remained a dispute now as to costs> The order stated that:

i.	"This shall be determined on paper following submissions that I direct should be dealt with in accordance with [the timetable which I have already identified]".

5.	On 26 October 2012 His Honour Judge McKenna sitting as a judge of the High Court, having considered what were very full written representations, ordered that there should be no order as to costs.  That disappointed Mr Farrell, who applied for oral hearing to pursue and elaborate his arguments as to why, as a matter of appreciation of the facts and now principle, the costs should be awarded in his favour.  The point is taken as to jurisdiction by the defendant that he has no right to do so.

6.	The claimant says that there is a right to reply to set aside or vary under the Civil Procedure Rules, which I shall refer to hereafter as the CPR, CPR 3.3(5).  It was put as simply and as seductively as this: this was an application dealt with on paper, thus it was an application dealt with without a hearing, therefore, it came within CPR 23.8(c) and since it came within 37.8(c) it was subject to the provisions of practice direction to CPR 23, namely, that: 

i.	"Where 23.8(c) applies the court will treat the application as if it were proposing to make an order on its own initiative."
7.	It is CPR 3.3 which deals with orders made of the court's own initiative and it follows that, this being an order, it is said, coming within 3.3(4): 

i.	"Where the court has made an order under paragraph 4 a party affected by the order may apply to have it set aside, varied or stayed and the order must contain a statement of the right to make such an application." 
8.	In support, Ms Livesey relies on authority in the Court of Appeal, particularly the cases of Collier and Compton, that if a matter comes within CPR 23.8(c) it follows that there is a right to apply to vary or set aside.
9.	In answer the defendant says two matters in the alternative.
10.	The first is to contend that this is not a matter within 23.8(c) because it is a case where the parties agreed that the court should dispose of the application without a hearing, at least in the sense that the claimant has made written representations and expressed or implied a consent to do so and, therefore, has agreed that the court should dispose of the application without a hearing.  If that is not right, the Defendant says that equally this is not a matter which comes within CPR 3.3(5) on its proper construction.
11.	The defendant refers to a case of Jones dealt with at first instance where that view was taken by the judge, Collins J, who ruled that the only right of such a disappointed party in receipt of an order for costs following written representations was to apply for permission to appeal to the Court of Appeal.
12.	Counsel on each side, Ms Livesey for the claimant, Mr Solomon for the defendant, claim to identify ‑‑ although they have been dealt with quite briefly in submissions before me ‑‑ policy considerations in favour of their respective contentions.  
13.	It seems to me helpful if first I recite the circumstances and relevant passages in the three particular authorities which were relied upon, reminding myself also that without prior notice to Ms Livesey, Mr Solomon in the course of argument had identified and procured a transcript of a decision of Ouseley J in reliance upon which, as it turns out, each side seek to derive comfort.
14.	In the case of Collier in the Court of Appeal [2006] EWCA Civ 20 the court was concerned with service and application without notice to extend time.  It was faced with argument as to whether, the court having refused an application, it was open to the applicant to ask the court to reconsider the matter and seek a different order rather than an appeal.  The court, by Dyson LJ as he then was, noted at paragraph 24 that it was the standard practice for the courts to allow such and that it was reflected in the judicial template.  It had been contended in that case before them that there was no such jurisdiction.
15.	They turned their attention to CPR 23.8(c).  At paragraph 32 they recorded their first impression in argument and then their more considered view.  Thus: 

i.	"During the course of argument we were impressed with the submission that CPR 23.8(b) applies where a court makes an order without a hearing and that the words, 'The parties agree that the court should dispose of the application without a hearing', should be interpreted as including the situation where the court agrees to dispose of a without notice application on paper. But, on reflection, to construe these words as applying in that situation is to give them a strained interpretation.  The word, 'Agree', in CPR 23.8(b) refers naturally to an agreement between the parties to the application rather than to an agreement between one party and the court.  Indeed, the concept of a party making an agreement with the court is strange.  It seems to us that CPR rule 23.8(b) is not saying anything about the willingness or otherwise of the court to dispose of an application without a hearing, that is the subject of CPR 23.8(c)."
16.	The following paragraphs are central to Ms Livesey's argument:

i.	"CPR 23.8(c) on its face appears to cover any situation where regardless of what one or more of the parties may say the court does not consider that a hearing would be appropriate.  In other words, this gives the court the jurisdiction to dispose of any application without a hearing."  

17.	Paragraph 34:

i.	"Why should CPR rule 23.8(b) and (c) not be construed in this way.  A possible concern is that if CPR 23.8 is so construed there is no express provision in the rules or the practice direction to prevent an unsuccessful applicant from asking the court to reconsider the order it made on paper rather than appeal.  In our view there is nothing objectionable in giving any party affected by an order made without a hearing the right to apply to have it set aside, varied or stayed whether the applicant requested a hearing in the first place or not.  This accords with standard practice referred to at paragraph 24 [I have already referred to that] and reflects the fact that efficient and proportionate case management often requires that orders be made on paper but recognises that a party may be able to put his case more persuasively at a hearing.  We can find nothing in this practice which casts doubt on what we consider to be the natural construction of CPR rule 23.8."
18.	In the case of Compton the court was concerned with the circumstances where a protective costs order is made or refused and turned its attention to whether there was a right to set aside or not, that being material to the argument on one side that there was unfairness if a claimant who was refused a PCO ‑‑ protective costs order ‑‑ had the right to renew the application at oral hearing without constraint, but a defendant who had a PCO made against him had to establish a compelling reason if the PCO was to be set aside.  That being the guidance which was given in Corner House [2005], Court of Appeal authority, which gave guidance which has been followed since in relation to protective costs orders.
19.	At paragraph 41 Waller LJ said this:

i.	"I would accept that in the Corner House case the court did not follow through with precision how the various rules operated in the circumstances where a PCO had been granted on paper but it seems to me that if they had the rules in mind the reasoning would have been likely to go like this.  First, they would not have contemplated that simply because a party recognises the reality, ie, that an application for a PCO would be dealt with on paper and seeks that that should be done contemplating refusal, the application should be treated as a CPR 23.8(b) application, the parties to agree that the parties should dispose of an application without a hearing so as to come within that provision.  The agreement needs to be clear and binding on both parties.  In this instance, as the PCP(?) recognised in its acknowledgement, the claimant was going to be free to make an oral application.  
ii.	"I would thus disagree with Mr Justice McCombe [the trial judge from whose judgment there was appeal] that there was any agreement within CPR 23.8(b)."  
20.	Paragraph 42: 

i.	"The application would thus come under CPR 23.8(c) and in the result either party has the right to make an application to the court to have it set aside, varied or discharged.  But would appreciation of that fact have led to the court ruling other than it did in the Corner House case?  In my view, it would not."

21.	This, says Ms Livesey, is clear authority in the Court of Appeal in unqualified terms that once one finds the case to be within CPR 23.8(c) there is a right to apply to set aside or vary.  
22.	She would add that in the case of “V”, produced at short notice by Mr Solomon, the same view was taken in relation to 23.8(c), albeit, it would seem, without argument on the point, by Ouseley J since at paragraph 14 the judge said this:

i.	"Mr Buley contends that in fact this matter was dealt with under (c) and, therefore, the appropriate approach under the practice direction CPR 23.11(2), is that the court should have treated the application as made by the court's own motion with a right of renewal notifying the parties under CPR 3.3(5).  If it had been decided under 23.8(c) I would agree with Mr Buley."
23.	I will stop the quotation at that point when dealing with the claimant's authorities.
24.	On Mr Solomon's side he relied on a decision at first instance of Collins J, unreported, neutral citation [2009] EWHC 271 Admin, where Collins J acted on the principles that he advances.  At paragraph 9 I need to record that Collins J was dealing with a matter where a claim had been lodged but the matter had been disposed of by way of a consent order.  Once the consent order was made it was for withdrawal of the claim before judicial review but the order made by the judge, Griffith‑Williams J, was that the matter of costs be dealt with by written submissions to be served by both parties to the court within 14 days and the parties complied with and that and the question of costs was considered by Sir George Newman who decided there should be no order for costs.
25.	At paragraph 9 the judge said this:

i.	"The Court of Appeal, as the notes to 23.8 make clear, has said that there are advantages that may flow from the court being able to deal with an application on the papers rather than at a hearing.  It can save costs and it may enable expeditious dealing with matters if applications are able to be dealt with on the papers, whether by consent or by direction of the court in individual circumstances.  It is frequently the practice of the court to deal with costs on the papers.  If there is a claim if permission is refused it is commonplace for the court to make an order for costs based on the Mount Cook principles but to direct that the claimant in respect of whom permission has been refused has the right to apply in writing and to make submissions against the order of costs or the amount.  Of course, in those circumstances the defendant will be able to put in any counter argument.  Equally, a withdrawal order would frequently contain a consent to costs being dealt with on the papers.  The order that results is nonetheless a final order and, as it seems to me, it is clear that the appropriate route if there is dissatisfaction with such an order is an appeal to the Court of Appeal." 
26.	Paragraph 11:

i.	"It is not without significance that rule 54.12 specifically deals with an oral renewal where there has been a paper decision but it is limited to a refusal of permission or the grant of permission subject to conditions or on certain grounds only." 
27.	He cites point 3 of 54.12 as providing that the claimant may not appeal but may request the decision to be reconsidered in the hearing.
28.	Paragraph 12: 

i.	"That, in my view, is entirely consistent with the recognition that without such provisions there would be right of appeal because generally speaking there is no right to go back to the court to seek a reconsideration, save where, for example, there has been a procedural defect of some sort or another or where there has been an ex parte order made and so the relevant party has not had a chance to make any representations." 
29.	Paragraph 13:

i.	"Short of that, where the party has been able to make representations and a fortiori where there has been a consent it seems to me that there is clearly a final order." 
30.	The judge also made observations that the ability to direct the question of costs to be dealt with in writing was useful, saving time and costs and generally involving no detriment to the parties, and saying that if it is directed by the court it is no doubt open to a party to apply for oral argument.  If, for example, a point of principle arises and the court (inaudible) that an application is made before it reaches any decision will no doubt consider it.  Subject to that he considered that the order made deciding costs was a final order and any appeal lies for the Court of Appeal, of course, on the principles applicable to appeals against costs orders.  There is:

i.	"No power in this court to reconsider the decision made in such circumstances."
31.	I observe two matters.  The first, as Ms Livesey noted, is that there was no reference in that judgment to the Court of Appeal authorities of Collier or Compton and it is unlikely that there would have been reference, save by industry of counsel, in that at the relevant time the White Book would have made no reference to those authorities.  Moreover, it is perhaps unclear to what degree there was detailed argument, in that the judgment of Collins J does not in detail particularise the arguments made on each side.  
32.	At this point I revert to the case of V, the recently discovered authority of Mr Solomon, and where I stopped reading, it conditions:

i.	"But, in fact, it sees to me that it was made under 23.8(b), the appellant clearly asked that the matter be dealt with without a hearing."
33.	It seems to me the first matter to be considered is whether this case falls within 23.8(b) or 23.8(c).  If it falls within 23.8(c) it is necessary to go on and to consider the effect of CPR 3.3.  
34.	The contention of Mr Solomon is that there was consent and agreement within the terms of CPR 23.8(b) on the part of the claimant to the matter being dealt with on paper.  He drew attention to the repeated submissions which there have been following the order of Deputy Judge Karon Monaghan QC and the content of those submissions.
35.	I respectfully consider that the contentions of Mr Solomon are not well‑founded.  First of all, it was the court which directed that there should be this manner of dealing with matters.  It is precisely this conceptual situation which the Court of Appeal was considering, for example, in the case of Collier at paragraph 32, that this was a strained interpretation.  Secondly, if one looks at the original submissions on costs of the claimant at paragraph 2 it said this: 

i.	"The claimant does not apply for an oral hearing of the Learned Deputy Judge's substantive decision to refuse permission."
36.	But at paragraph 5 it said this:

i.	"If in so far as the question of promptness is relevant to the remaining dispute as to the costs and the court is not content to resolve the question in the claimant's favour, the claimant respectfully respects that a short oral hearing be directed to resolve the issue."
37.	It is right, as Mr Solomon says, that in reply to the defendant's submissions, unusually perhaps, the written representations of the claimant referred to the case of Ewing and the observations by way of a footnote to those representations of the court in Ewing as to the manner of dealing with matters on paper; but it seems to me that if the whole vehicle of consideration of costs in this manner has been set in motion by direction of the court it is, as the Court of Appeal found in its own case in Collier, artificial to treat this as an agreement by way of implied consent that the claimant has made albeit elaborate submissions.
38.	Thus, on the reality in this case it seems to me that the claimant was doing nothing more than complying with the directions of the court.  If the claimant was doing nothing more than complying with the directions of the court it follows that this came within CPR 23.8(c).  If that is so it seems to me that I need to consider CPR 3.3(5), which is the route by which Ms Livesey seeks to find her way to a right to apply to set aside.
39.	Before I do so, I make two preliminary observations.  This is a case where the court itself has given directions allowing both parties to make representations, albeit it is true that they were described as to be succinct, but nonetheless the court has given the opportunity to make representations and it has been fully taken up.  This situation where the claim itself has been dealt with and is at an end, subject to any application within seven days for oral hearing of renewed application such as does not apply in this case, one is at a situation where the parties are each on notice of the representations which may be made by the other and have had full opportunity to deal with them.
40.	That seems to me very different from the commonplace and every day experience of the courts where the ordinary civil courts will be dealing with innumerable without notice applications which invite, in effect, summary disposal on the papers and where it is important, therefore, that there should be a right to approach the court to elaborate any argument, to draw to the court's attention what may not have been obvious on the face of the papers or, of course, to identify any matter of principle.
41.	The second is this.  In my judgment one cannot escape, when considering the provisions of 3.3(5), the structure of 3.3.  This being a case under CPR 23.8(c) the practice direction to Part 23 tells us at 11.2 that the court will treat the application as if it were proposing to make an order of its own initiative.  Part 3.3 is that which sets out the detailed prescription where the court is considering an order of its own initiative.  3.3(1) gives the power.  3.3(5) says: 

i.	"Where the court has made an order under paragraph 4 a party affected by the order may apply to have it set aside, varied or stayed."
42.	That takes us to paragraph 4:  
i.	"The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations."
43.	It seems to me that it is important to note the other provisions of 3.3.  At 3.3(2):

i.	"Where the court proposes to make an order of its own initiative it may give any person likely to be affected by the order an opportunity to make representations.

ii.	(b) Where it does so it must specify the time by and the manner in which the representations must be made."
44.	The present case is one where the court, therefore, does propose in the order of Karon Monaghan QC to make an order of its own initiative and has specified the manner in which the representations must be made.  CPR 3.3(3) states:

i.	"Where the court proposes:

(b)	to make an order of its own initiative and

(c)	to hold a hearing to decide whether to make the order, it must give each party likely to be affected by the order at least three days notice of the hearing."

45.	It is in that context, it seems to me, that paragraph 4 is phrased as it does:

i.	"The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations."
46.	If this transcript were being voiced by me it would be noticed that that phrase has been read without hesitation, namely: 
i.	"without hearing-the-parties-or-giving-them-an-opportunity-to-make-representations."

47.	The important of this point appears to me to be this: nowhere on the face of the judgments in Collier and Compton does it appear that there was any detailed consideration of or that there had been argument upon the proper interpretation of CPR 3.3.  Ms Livesey acknowledges that, but says that that must be something which the Court of Appeal will have considered.  It will have been important to them to form a view as to whether 3.3(5) applied and, therefore, they must have taken the view that a 23.8(c) case, generally and without qualification, falls within 3.3(4).  Why would they take that view?  She offers this explanation; that they will have taken the view that rather than being read all of one phrase, as I did orally, the important phrase within 3.3(4) is disjunctive.  In other words, in agreement with this way of putting it which I offered as a way of understanding her submission, it should be read as: 
i.	"The court may make an order of its own initiative.  Without hearing the parties.  Or without giving them an opportunity to make representations."
48.	If that is read disjunctively then all becomes clear and it explains and supports the reasoning of the Court of Appeal.
49.	It does not seem to me that set in the context which I have set out, it is proper for the court in interpreting CPR 3.3(4) to read it disjunctively: the structure of 3.3 is clearly for the court to choose whether to give a hearing or to direct written representations only, or it may be to direct written representations and make directions for an oral hearing or to give the parties opportunity to make representations whether there should be an oral hearing.  Equally, it may decide and direct that the matter be dealt with entirely on written representations.  
50.	Standing back, as I try to, in my respectful judgment first of all, that respects the structure of 3.3 and the distinctions which it draws and, secondly, is a more natural way of reading 3.3(4).
51.	Before reaching a conclusion upon that I have considered the respective considerations of policy which have been advanced.  
52.	On Ms Livesey's side she relies on the general, if not enthusiasm, lack of any objection in the sight of the Court of Appeal to any party affected by an order made without a hearing having the right to apply to have it set aside, varied or stayed, as in paragraph 34 of Collier.  Secondly, she would say that this is a case where the claimant is grievously disappointed that having secured the relief, in effect, that he sought by the claim for judicial review, he should be sent away with no order for costs in his favour and, moreover, having to throw himself firstly upon the Court of Appeal and the uncertainty of whether permission would be granted where costs are a matter of discretion, and it is well‑known that the Court of Appeal will take a restrictive approach to permission to appeal given the latitude of discretion as to costs. She would add, expressly, that this is to cast a burden on the Court of Appeal which should not be theirs, in that in a case where a party is disappointed by the costs order made it will be visited upon the single judge in the Court of Appeal whether or not permission to appeal should be given.
53.	On the other side, Mr Solomon draws attention to the huge numbers of costs orders made of this sort in the court dealing with judicial review. He says there is lack of attraction, if, irrespective of showing anything new or a particular principle, and irrespective of whether the submissions have been made with compelling detail and reach, the disappointing party is come what may entitled to visit on the court an oral hearing.  He might have added in support of this that the present is a paradigm case because, as I will record the written representations which have been made on behalf of the claimant before the decision made on costs by His Honour Judge McKenna have been very full, if not elaborate.  One might have expected that there would be one set of submissions and representations; in fact, here there was a full witness statement, written representations, then a reply served to the representations which had been submitted in writing by the Defendant. It is plain that huge effort has gone into those representations by the Claimant and they appear to me to have comprehensively canvassed all the arguments which in the skeleton arguments before me Ms Livesey would have wished to pursue.
54.	It seems to me that the policy considerations are strong, that where full opportunity has been given for full representations to be made, the court should not here be visited with an oral hearing, come what may, irrespective of whether there appears to be anything new or of significant apparent merit in the application for an oral hearing.
55.	I note that Collier itself was, as I averted at the beginning of this judgment, dealing with a “without notice” application on paper.  The same considerations appear to me to apply in the case of Compton.  Ms Livesey says that that cannot be distinguished simply because it is a protective costs order.  She might say simply to label it as a protective costs order case without more would not meet the point of principle as to the proper construction and effect of CPR 23.8(c).
56.	Put broadly, I respectfully agree that it is not enough to say that is a protective costs order case, therefore, it is simply so ingenious and entirely of its own separate and unique sort as to be disregarded.  However I note two things.  Firstly, a protective costs order comes at the beginning of litigation and it is perhaps understandable that the court should be sympathetic to a structure within which brief submissions may be made in the claim form and opportunity given to the disappointed party seeking a protective costs order to renew applications orally.  This, in contrast, is at the finality of the litigation, as Mr Solomon observed. In particular it seems to me that the structure of dealing with protective costs orders has been elaborated by the courts, both to safeguard each party interested by such an application but also to fashion a practical way of dealing with it where it is apparent and in the contemplation of all that it is for convenience that the request or application for a protective costs order should be dealt with in the claim form itself and there be the opportunity in the ongoing litigation to consider further whether there should be a protective costs order, in other words, within the continuing obligation of the court to have regard to the overriding objective of dealing with cases justly.
57.	In the case of a protective costs order dealt with at an early stage of the proceedings it may very well be that a good practice is to allow oral hearing because at that stage the court may be uncertain as to what yet may be deployed by way of argument or evidence.  Here, the order as to costs is at the conclusion and final stage of the litigation and if one looks to the overriding objective of dealing with cases justly and proportionately and with economy, as I am enjoined to do generally by the Civil Procedure Rules, it seems that the construction that I have followed is just to the parties and is consistent with the care taken by the courts to deal with matters proportionately.  
58.	I say no more about the elaborate representations made in writing but it follows, in my judgment, that albeit neither side has been able to draw my attention to an authority which has been argued in relation to interpretation of CPR 3.3, interpretation in the way that I have attempted to do I find myself leads to a conclusion adverse to the claimant.
59.	I have noted that in this case the Deputy Registrar of the Court of Appeal, having received appeal papers, as my attention was drawn, directed or advised the claimant to pursue another course.  In other words, before this court directing the Deputy Master of Civil Appeals, who, as recorded in the letter of 22 November 2012, asked the author to inform the claimant's solicitors of the following:

i.	"The papers are to be returned and fee refunded to the applicant's solicitors because the High Court has not exhausted its jurisdiction in relation to this matter."

60.	That may have been in reliance upon the editorial note, of which also I have taken full note, which in general terms recites the effect of Collier and Compton in the terms which Ms Livesey contended.  My conclusion is that I do not have jurisdiction to deal with this matter.  
61.	It must follow as a matter of logic, must it not ‑‑ I had been considering whether to allow the rest of the argument to be given, to consider it and, therefore, to give, as it were, a belt and braces, "If I am wrong about that the claimant succeeds or fails", - that if I am without jurisdiction, I am without jurisdiction and I ought not to do it. If I am wrong you are going to put me right straight away in the Court of Appeal.

62.	MS LIVESEY:  My Lord, I think that must be right.  With the usual trepidation I have an application for permission to appeal.  I only put this way, that there is a real prospect of another tribunal reaching a different view based on what was said in the Court of Appeal in Compton and Collier, namely, the unqualified statements as to a right to set aside or applying in the rule 23.8(c) situation.  That combined with the two decisions at first instance in the West Lancashire case and the decision of Ouseley J in V where they appeared at first instance to follow that course.

63.	JUDGE SEYS LLEWELLYN:  Yes.  Mr Solomon, normally the last thing that one wants to do is visit the party who has been successful on a jurisdiction point with an appeal with attendant costs, some of which may not be recoverable.  I have not formed a view yet but it does seem to me that you have the misfortune to be the case which for the first time has argued the 3.3 point.
64.	MR SOLOMON:  My Lord, many cases are brought for the first time simply because it is so obvious that they should not have been brought before.  The courts make decisions every day on paper in the way that we have had in this case and never has, as far as both me and my learned friend in our researches have been able to find, a court been asked to deal with this issue, I submit because no one has thought to take this point.  It is obviously wrong, for the reasons your Lordship has given.  It is wrong also to give permission.  This is a case solely about costs now.  It has only ever been about costs.  The claimant has pursued it relentlessly right from the start, putting in massive amounts of submissions, witness statements and submissions, on costs, solely to increase the amount of costs.  A full stop has to be put down.  It is against policy, with respect, my Lord, to give it permission and it stands no prospects of success, for the reasons you have eloquently set out, my Lord.
65.	MS LIVESEY:  My Lord, if I may reply?  
66.	JUDGE SEYS LLEWELLYN:  Yes.
67.	MS LIVESEY:  None of those submissions go to the threshold for the permission to appeal application.  The fact that it would cost money, yes, that is regretful, however, the test is whether there is a real prospect of success and I am afraid it is not right to say the point has not been raised.  Obviously it has been raised in the Jones case and before Ouseley J and it has gone different ways.
68.	JUDGE SEYS LLEWELLYN:  I think Mr Solomon meant the 3.3 interpretation point.
69.	MR SOLOMON:  Exactly.
70.	JUDGE SEYS LLEWELLYN:  You can note the words carefully if you wish.  I shall try to use them carefully. I have very great sympathy with the wish on the part of the claimant to have an authoritative statement from the Court of Appeal in respect of the point which not only concerns him but which may be of important day to day consequence.  It is also right for a judge at first instance to recognise the degree to which he or she may be unfortunately tethered or hobbled by having reached his own conclusions.  However since I have reached those conclusions and since in my mind they were right and clear, the critical test, whether there is a real prospect of success, is one which I am going to answer in the negative; if others show that I was wrong then I will be perfectly at ease that the point is going to be decided at a higher level.  Permission to appeal refused.
71.	MR SOLOMON:  Thank you.  I apologise, one further application.  It follows naturally from the consequences of your decision, it is for my client's costs of this hearing.  The costs follow the event.  There should be no reason why my learned friend could oppose it.  I should also draw to your attention behind tab 34 a letter we wrote in November of last year saying the court has no jurisdiction.  It is misconceived and we draw that letter to the attention of the court on costs.
72.	JUDGE SEYS LLEWELLYN:  Pause there, because it may be that Ms Livesey, as matters stand at the moment, will acknowledge that costs go one way.  I do not know.
73.	MS LIVESEY:  My Lord, I do, but if Mr Solomon is warming up for an indemnity costs application I will address the two points he has just made.
74.	MR SOLOMON:  I will just ask your Lordship to assess costs now, which might be simpler, rather than going through the basis of the order of costs.
75.	JUDGE SEYS LLEWELLYN:  I am not enthusiastic about that, having kept the court staff until 1.35 pm.
76.	MR SOLOMON:  It is very simple.  The costs are very short.  Our costs are significantly less than the claimant's costs, my Lord, and they are in the bundle before you.  If your Lordship glances at them at page 253.
77.	JUDGE SEYS LLEWELLYN:  Is this bundle B? 
78.	MR SOLOMON:  I think it is the back of bundle A.  Mine is loose.  It is the last tab of bundle A.
79.	JUDGE SEYS LLEWELLYN:  I have it separately. 
80.	MR SOLOMON:  It is page 253 and 254.  You will see our costs amount to £8,000 odd including VAT.  The claimant's costs for this application appear at 250, my Lord, and are over £14,000.  So you may determine reasonableness of our costs in that context.
81.	JUDGE SEYS LLEWELLYN:  Are there matters of detail, Ms Livesey?
82.	MS LIVESEY:  There are going to be some because we do still say it is high.  Our costs are not £14,000.  It may be that Mr Solomon is looking at the wrong schedule.  Our costs are at £11,350 of today.
83.	JUDGE SEYS LLEWELLYN:  £14,000 is the cost of the action.
84.	MS LIVESEY:  Yes.
85.	MR SOLOMON:  I beg your pardon.  Page 250 is £11,350.  Is that plus £940? 
86.	MS LIVESEY:  No, it is inconclusive of VAT.  Total including VAT £11,350.14.
87.	MR SOLOMON:  It is still over £3,300 more than our £8,000 odd.
88.	JUDGE SEYS LLEWELLYN:  Right.  Bullet form? 
89.	MS LIVESEY:  There are good reasons for that.  The claimant made the application in the first place, the one at tab 1.  It has done all the work on all the bundles that you have before you.
90.	JUDGE SEYS LLEWELLYN:  Just take me to the defendant's costs.
91.	MS LIVESEY:  So the defendant's costs are equivalent as to the fee of Mr Solomon and me for today, in that his are £3,300 ex VAT, mine are £3,300 ex VAT plus I had some assistance from a junior for £525.  So I am not challenging ‑‑ 
92.	JUDGE SEYS LLEWELLYN:  Just take me to where, if anywhere, you challenge.
93.	MS LIVESEY:  I am challenging the solicitor costs.  I cannot tell what they are really but there are over three and a half hours attendances on client and then there is about seven hours work on documents by the solicitors.  
94.	So in the absence of any bundling duties that were assumed by my solicitors and counsel having been instructed to prepare skeletons and the like, the resistance to the application was based on one case until today until during submissions, so I am not sure where the hours on research on the law come from.  There is seven hours in there on page 2.
95.	JUDGE SEYS LLEWELLYN:  That is it, is it not? 
96.	MS LIVESEY:  It may be that the four hours for the hearing, although we have listed for two we have been going for three.  So an hour could come off that.
97.	JUDGE SEYS LLEWELLYN:  Attendance at hearing, including travel.
98.	MS LIVESEY:  I believe they are based in London.
99.	JUDGE SEYS LLEWELLYN:  Yes.  Thank you very much.  
100.	I need not trouble you on attendance at hearing, Mr Solomon.  The other points? 
101.	MR SOLOMON:  My Lord, the total solicitor costs ex VAT are £3,400.  You can see that on page 254.  There was significant correspondence between the parties, I have shown your Lordship some of the correspondence, and that deals with case law as well.  There was plainly work to be done by solicitors and in the context of this application £3,400 is obviously reasonable.  My learned friend says she is not able to tell you precisely what it is she objects to but costs are to be dealt with on a summary basis and it is not good enough now to stand up and say, "Even though I am dealing with summary costs it is just too high, I cannot really tell you why".  With respect, this is a significant and serious application.  The total costs amounted to £8,000, over half of which are not challenged.  The solicitor costs of £3,400 odd are perfectly reasonable.
102.	JUDGE SEYS LLEWELLYN:  Thank you both very much.
103.	I shall take a broad brush approach. It seems to me that the hours of preparation indicated are in the totality reasonable, the rates are reasonable, summarily assessed in the sum claimed of £8,042.40.  
104.	Ms Livesey, may I ask an indulgence or a favour and that is I shall need to fill in a form as to permission to appeal refused and reasons.  If you could possibly reduce to writing and email in to the court my supposedly careful words I would be grateful.
105.	MS LIVESEY:  I will do that.
106.	MR SOLOMON:  I am grateful, my Lord.  Thank you for sitting so long today.