CO/2090/2015 
Neutral Citation Number: [2016] EWHC 1636 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 
 
Wednesday 3 February 2016 
 
B e f o r e: 

MR JUSTICE LANGSTAFF

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Between: 
THE QUEEN ON THE APPLICATION OF WILDBUR 
Claimant 
v 

MINISTRY OF DEFENCE 
Defendant 

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Mr Jonathan Dingle (instructed by Parker Bullen) appeared on behalf of the Claimant

Mr James Chegwidden (instructed by Government Legal Department) appeared on behalf of the Defendant

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J U D G M E N T
MR JUSTICE LANGSTAFF:  

1.	If it be necessary to do so, I extend time for the acknowledgement of service and for any reply that came to it.

2.	The application for judicial review concerns the decision of an Army Service Complaint Panel of the Ministry of Defence which in a decision of 27 January 2015 upheld, in part, a complaint made on 12 December 2012 by the claimant who was then Captain Wildbur.  

The Background 
3.	Until 12 June 2013 Captain Wildbur was a full‑time commissioned officer in the British Army.  He was on a short‑service commission but had provisionally been accepted for a long‑term IRC (a regular commission) in substitution.  The IRC is an intermediate step to a full regular commission which attracts a pension.  Around two‑thirds of those on an IRC convert to an RC.  The claimant was highly likely, it was thought, to obtain promotion to a Major and it was asserted on his behalf in his grounds that he had a reasonable prospect thereafter of securing an appointment as Lieutenant Colonel.  

4.	Under regulations made in 2011, required to adjust the size of the Army, some officers had to be selected for compulsory redundancy.  The defendant was required by the Government to ensure that the process of selection was fair, logical and based on clear published criteria.  The claimant, as it happened, did not fall within the criteria, but because of errors on the part of the defendant was erroneously thought to do so and was regarded as eligible for ‑ and therefore selected for ‑ redundancy.  In short, it was held by the Service Complaint Panel (SCP) some two‑and‑a‑half years after the date of his dismissal from the Service as redundant that he had been wrongfully dismissed from the Armed Services.  

5.	The power under which the SCP sat was that contained in the Armed Forces Act 2006.  Section 334 headed "Redress of Individual Grievances: Service Complaints" sets out some provisions in general terms as to the handling of those complaints and the powers of an SCP.  By Section 334 (7), if a complaint is referred to the Defence Council, on whose behalf the SCP in this case sat, the Defence Council (known as the "appropriate person" within the statute) "must decide whether the complaint is well founded".  It did so here.  By sub‑section (8), it was provided, so far as material, as follows:

"(8) If the appropriate person decides that the complaint is well‑founded, he must ‑

(a) decide what redress (if any), within his authority, would be appropriate; and 

(b) grant any such redress."

6.	The Panel set out its conclusion on the complaint in a decision which ran to nine pages.  It was only on the penultimate page that it turned to the question of redress, apart from having directed itself at paragraph 4 (g) as follows:

"4 (g) As redress, Captain Wildbur said that since he had been subject to gross career mismanagement over a number of years, he did not wish to continue in employment in an organisation that had treated him so appallingly.  He requested compensation for the loss of future earnings that he would have received had his career not been so mismanaged, including pension benefits he would expect on completion of his IRC and seven years salary to take him to the end of that commission.

.....

10 We considered Captain Wildbur's request for specific redress but we were not bound by the request.  In the event of a finding that he was wronged, it was for us to decide on appropriate redress."

7.	As it happens, and it may be material, the quote at paragraph 4 (g) came from the complaint which was dated 12 December 2012, that is some six months or so prior to the date that Captain Wildbur left the Army.  He was then saying, whilst a serving soldier, that he did not wish to remain in it.  At paragraph 19 the tribunal said, in paragraphs which are central to this challenge, as follows:

"19 We direct as follows:

(a) Captain Wildbur has asked for compensation and indicated that he does not wish to continue serving in the Army.  Nevertheless, we consider it appropriate to offer him the opportunity to serve on the basis that he should not have been selected for redundancy for the reasons we have set out above.  Subject to what is said at (b) below, Captain Wildbur is to be told that his retirement will be annulled and he will be allowed to continue serving in the Army on terms appropriate to an officer with an IRC;

(b) Captain Wildbur is to be directed to our decision concerning his continuing service.  If he does not now wish to continue serving, his retirement on redundancy is to remain in place;

(c) in addition, Captain Wildbur is to be paid a sum equal to the salary he would have received if he was not made redundant from his last pay day of service to the date this decision is notified to him.  This sum is payable subject to the following deductions:

(i) income tax and national insurance contributions that would have been payable by him if he had received the sum as Army pay, 

(ii) the sum equal to the sums he received as a SCP [that means in this case a Special Capital Payment] and re‑settlement grant on account of his being made redundant, and 

(iii) a sum equal to any pay he received for other employment during the period set out above."

8.	At paragraph 20 the Panel added:

"20 In addition, we apologise to Captain Wildbur for the wrong in this case and we apologise for the delay in resolving his complaint which raised serious and complex issues."

9.	Neither counsel has referred to paragraph 20 as being part of redress, but in my view it was intended to be so, came under the section in relation to it, and plainly indicates some of the considerations of a non‑financial sort which can fall within the head "Redress".  For many, an apology is of significant importance. 
 
The Challenge 
10.	In summing up the submissions he made orally on behalf of Captain Wildbur, Mr Dingle submitted that the decision which the Panel had reached as to redress was not rational.  No rational panel could have conducted itself, having made a finding that the Captain had been dismissed in breach of the law and regulations, and found that financial redress was that which it was appropriate to offer whilst failing to analyse the subjective circumstances into which the Army had put Captain Wildbur. It had not gathered any evidence of his position, it had not considered the relevant circumstances and there was no subjective analysis of his predicament (the first word that came into Mr Dingle's mind ‑ "situation" is perhaps the word he was searching for) such as to satisfy the test under Section 334(8) which it is common ground was the applicable test.  

11.	I shall deal with the further submissions of both parties in the course of this judgment at a later stage. 
 
12.	Where there is an attack on the decision‑making of a body of non‑lawyers occupying a public function as here, two matters must be stated at the outset.  First, the challenge must be determined in the light of the information that the decision‑making body had before it.  Second, in his case the words of the decision are to be read as those of Army men speaking to an Army man.  

13.	My task is to determine if the decision which the Panel reached is unlawful.  It would be so in these circumstances: if the Panel had misconstrued the statute so as to misapply it; or, if properly construing and applying the statute, it had reached a decision which was Wednesbury unreasonable which, for these purposes, I take as meaning that it took into account a factor which it should not have taken into account or failed to take into account one which it was obliged to; or reached a decision which no reasonable Panel in its position could have reached: in other words, a perverse decision, one which, as it has been described in other cases, flies in the face of reality.  

14.	The fact that a differently composed body may quite reasonably have reached a different result is irrelevant to the question whether this Panel erred in this decision: it is of the nature of decisions involving the exercise of judgment that they may very well be made differently by different panels, and most decision‑making bodies have a wide range within which a proper decision may be reached even though views may be strongly held on both sides.  

15.	The point here is illustrated by the facts of a case to which I was taken which was added to the bundle this morning, that of Crompton v United Kingdom, Application 42509/05, before the European Court of Human Rights.  The point in issue was not that here.  Indeed, there is no direct precedent dealing with this particular statute or these particular circumstances.  But in the course of the recitation of the facts it emerged that there was a decision made by the Army Board, under what was a previous statute covering service complaints, relating to the redundancy of the applicant from the Army which had been made incorrectly some six years prior to the case being heard.  He had claimed redress.  He was offered compensation for the loss of earnings which he had suffered made up of his loss of salary, a loss of pension rights and a redundancy payment.  Not unnaturally, Mr Dingle points to this as a paradigm exercise of the discretion under that particular statute and argues that it is an examplar which might help to show how lacking in common sense the particular decision reached by the Panel in this case really was.  

16.	As to the grounds of challenge which I have identified for myself, I could add that of procedural irregularity where that is material to the decision.  That was not, as such, alleged in the grounds.  It was not the basis for granting permission.  It is possible to see a submission made today by Mr Dingle to me as coming under that head in that he was arguing that it was necessary ‑ to the point of it being an error of law to fail to do so ‑ to seek information from the claimant as to his personal circumstances before attempting to make any decision to compensate him financially.  

17.	I shall deal with each of the potential heads of claim in turn.  

18.	As to the statute, the words are, it seems to me, deliberately chosen.  The significant words in sub‑section (8) are "redress (if any)" and "appropriate".  It is common ground between the parties that the decision as to whether any and, if so, what "redress" is "appropriate" is for the Panel.  No objective standard exists against which to measure it save that it must not be irrational.  

19.	As to the word "redress", I accept Mr Chegwidden's submission that it is undoubtedly not limited to financial compensation.  It may be wider.  It seems to me ‑ and in reply Mr Dingle was constrained to accept ‑ that the closest analogy is not that of compensation for such as unfair dismissal or for a tort arising in employment, but probably with the resolution of a grievance procedure operated by an employer within employment.  In common with those hearing a grievance, within the powers of management to direct employees and the undertaking which are incidents of ordinary employment, and which are within the powers granted to officers within the terms of the Army regulations, there is a wide range of measures which might be taken, as indeed my reference to paragraph 20 already demonstrates. 
 
20.	The word "appropriate" is a change from a word which I am told was used in a 1955 version of the Armed Forces Act; it was then "necessary".  It suggests that there must be a clear relationship between the redress which is offered and the wrong which has been suffered. However, it is again a phrase which is wide and which, as I have observed, is at the outset for the decision‑making body itself to identify.  Provided therefore that I am satisfied that the decision is within the scope of that which is permissible, having regard to the Wednesbury test (as I have expressed it), there can be nothing wrong with a conclusion reached on that basis.
  
21.	As to the Wednesbury test itself, it is argued by Mr Dingle that the Panel fettered its decision making.  He draws from both evidence internal to the decision and external to it to make this submission.  Internally, the wording of paragraph 19 (b) suggests that the Panel was prepared to decide that Captain Wildbur's "retirement on redundancy is to remain in place", but Mr Dingle complained that the Panel had just decided it could not, because it was unlawful.  There would be no power lawfully to hold the claimant redundant.  The Panel was therefore making a decision here which indicated that it was taking into account a wrong factor.
  
22.	The stronger ground, as he I think would have submitted it, was that which was drawn not from anything which was in the Panel's decision itself, nor from papers before it, nor from any explanation given by any member of it (for none as such has been given since), but in the detailed grounds of resistance filed on behalf of the Secretary of State for Defence and drafted by Mr Chegwidden.  He dealt with redress by regarding paragraph 19 (a) as primary redress and paragraphs 19 (b) and 19 (c) as secondary redress.  He wrote (at paragraph 74):

"74 It is not known whether the Panel was provided with information as to the specific amounts paid to the claimant as part of a Special Capital Payment and Re‑settlement Grant.  However as the precise amount awarded under those headings is determined by statute in any event, so it was not for the Panel to order a different amount to be paid." ‑
  
23.	It is said that this represented the Secretary of State saying that the Panel, when it came to award financial redress, had thought it could give no more than the amount of the Special Capital Payment and the Re‑settlement Grant.  Mr Chegwidden has explained that that is not how he meant it to read.  I do not think it reads in that light either.  He intended it to read ‑ and indeed I have read it - as a recognition, as indeed is common ground between counsel, that a Special Capital Payment as such and Re‑settlement Grant as such could be awarded in no other sum than they were here, because the precise calculation of those sums was prescribed by Regulations, taking into account in particular the dates and length of service.  Evidence from the decision itself demonstrates that the Panel did not fetter itself in that way.  Paragraph 19(c) makes no sense if it did so, for it anticipated that, depending entirely on the circumstances in which the claimant was, he might be paid a sum in addition to the amount of the Special Capital Payment and Re‑settlement Grant which he had received. 
 
24.	I do not accept therefore that there is any evidence that the Panel unlawfully fettered its decision making in this way.  

25.	There is however very little evidence as to what precisely was in its mind when it came to decide on redress.  That led to the next point made by Mr Dingle, which was that it had given an insufficient explanation of the reasons why it offered the redress it did and that, in turn, led to his argument that it failed to take account of the particular individual circumstances of the claimant.  

26.	I note that, as it happens, such were the sums paid to the claimant by way of Special Capital Payment (which was £61,271) and Re‑settlement Grant (which was just over £14,000), that the prospect was negligible that, if they were accounted for, there would be any shortfall from the salary (net after tax and national insurance) he would have been due had he remained in post throughout the period. The Special Capital Payment and Re‑settlement Grant exceeded his net salary.  Had the Panel been aware of that, it would not in my view have added the additional paragraph at 19(c) which provided for the possibility that his salary might have outstripped what he had been paid by way of Special Capital Payment and Re‑settlement Grant.  

27.	I accept that there was no material in the very considerable volume of documentation before the decision‑making Panel which cast any light upon the income and work of the claimant since he had left the Service, waiting, over too lengthy a time, for his complaint to be determined; that, with the exception of what he had said at paragraph 5 in his complaint of 12 December 2012 when he had expressed the wish to be compensated for the loss of future earnings that he could rightly have expected, had matters not been so poorly mis‑managed, including the pension benefits that he could expect on completion of his IRC, and seven years' salary to take him to the end of his IRC point, there was no reference to financial detail.  

28.	In my view when the Panel dealt with redress here it was not dealing with figures.  It did not have any.  Although, for the purposes of the court, a schedule of loss has been provided, this was not before the Panel and therefore it could shed no real light on its decision making. The Panel approached “heads” of compensation, rather than any detail of its computation.

29.	I accept Mr Chegwidden's answer to the point put about the inevitable failure of paragraph 19(c) to be meaningful in the particular context of this case.  What the Panel was doing was setting out as a matter of principle how it thought redress should be afforded.  I accept that it was not dealing centrally with compensation.  It was dealing with an overall package.  The package had three parts.  The first and second were alternatives.  No doubt (I infer because of the time that had elapsed and the expression of wish which the Captain had made in his complaint) it offered him the chance to have appropriate compensation, as it saw it, on the basis that he did not return to service.  It respected his integrity in permitting him to make that choice, recognising no doubt that it was in part the position in which he was placed by the delay the Panel had taken in coming to its determination.  But essentially the package was one in which the Panel, considering what proper redress there should be for having wrongfully dismissed a man from the Service, concluded that appropriate redress would be to restore him to the Service as though he had never left.  There is nothing at all illogical or irrational about that.  And it is to be noted that, if it had been accepted, it would have meant that there was no need for any financial compensation at all. 
 
30.	The second part of the redress afforded – at paragraphs 19(b) to 19(c) ‑ is the part on which the submissions of the claimant have focused.  But they are and have to be seen as part only of an overall package.  If he chose not to have his position completely restored he could do so, but the Panel was providing that if so he would not lose out by a single penny up until the date of his determination.  That is the effect of principles set out at (b) and (c).  

31.	If I am right in reading that the decision was written as intended to make sense by Army men to an Army man, it did not need to know the particular figures or the particular circumstances of the Captain.  That would be for later application of the decision to particular facts. 
 
32.	The principles of redress are those with which it was concerned and which centrally mattered.  Viewed in that way, there would be nothing illogical, nothing irrational and nothing unreasonable about the decision.  It did not condemn him to loss.  

33.	In the original grounds filed on his behalf, the claimant divided the decision on redress into a primary offer and a secondary offer.  As I have indicated, I do not think that is the proper way to regard it.  It was one offer, albeit it gave a choice.  His grounds asserted that the effect of 19 (b) and 19 (c) would be that the claimant would owe the defendant money.  That was a misreading and expressly was not advanced by Mr Dingle before me because it misconstrues what was actually said in paragraph 19(b) and paragraph 19(c).  The amount of money to be paid to the claimant under 19(c) would be sufficient to provide that if he chose to remain in civilian occupation and not return to the Army then he should not lose out.  If, as here, however, his Special Capital Payment and Re‑settlement Grant outweighed the money he would otherwise have had, it did not follow that he had to repay a penny.  He was no worse off than he would have been if he had chosen to accept redundancy on the date of redundancy.  

34.	The purpose of paragraph 19 (b) and paragraph 19 (c) was to enable him to make the choice ‑ to have left the Army (which is what he indicated he wished to do) ‑ and not to suffer at all financially up until the date of the decision having been made, it being the background to that that he would obviously have no pension entitlement, nor loss of further earnings, because it assumed he had made a conscious decision to leave the Army.  

35.	So viewed, there is nothing in my mind which is illogical irrational or perverse about the conclusion.  

36.	Mr Dingle pointed out in his written submissions and cited before me that the effect of having pursued a complaint over a period of time, asserting that he had wrongly been made redundant and eventually being found to be correct in that assertion, had left him no better off than he would have been had he simply not made any fuss at all.  That, I think, focusses upon part only of the decision as to redress.  It focusses entirely upon paragraphs 19(b) and 19(c) and does not consider paragraph 19(a).  Without his success in his complaint, there would be no outstanding offer ‑ as I understand it still is ‑ that the Captain had (and has) the choice to return, should he wish to do so, to his armed service and pick it up where he left off. He achieved that choice, which is more than he had. 

37.	The advocates both took me to a range of cases to which, in my view, it is unnecessary to refer since none deals directly with the point, and the principles of public law which they espouse are familiar territory.  It is however perhaps worth restating the words of Lord Brightman in R v Hillingdon Borough Council LBC ex p Puhlhofer [1986] AC 484 at 518 D to E:

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power ‑ e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense ‑ unreasonableness verging on an absurdity: .....  Where the existence or non‑existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision‑making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

38.	Since the decision in the present case is not perverse, the question remains whether in its approach to making it the Panel took into account that which it should not, or left out of account that which it should have considered.  Here, the statute does not prescribe any particular procedure which the Panel is required to adopt.  It is in that respect, too, analogous to a Panel of managers hearing a grievance arising in employment:  there is nothing that statute or regulation requires should be taken specifically into account.  In London Borough of Newham v Khatun and Others [2004] EWCA Civ 55, a decision of the Court of Appeal (Auld, Laws LJJ and Wilson J),  Lord Justice Laws (paragraph 34) cited a passage from the speech of Lord Scarman in Re Findlay [1985] AC 318, at 333F to 334B: if those challenging the approach of a decision maker could not show some factor which statute or regulation required to be taken into account, they would have to demonstrate "matters so obviously material to a decision on a particular project that anything short of direct consideration of them ..... would not be in accordance with the intention of the Act".  

39.	In dismissing the appeal, save in part as to one issue, Laws LJ said at paragraph 40 that the procedures he was considering in that case, in relation to the making of a decision by a council, were obviously not perfect and observed:

"40 ..... A more intensive fact‑gathering exercise would or might well have picked up the problems ..... associated with [in that case] locating Ms Khatun's accommodation above a public house."

Nonetheless he concluded that the procedures could not be categorised as inadequate so as to violate the common law standard of rationality.  In short, in determining what other factors might be taken into account, he adopted both an exacting standard in assessing any such violation, and a wide margin of discretion.   

40.	Here, it seems to me the Panel might well have chosen to make further inquiries of the Captain as to his particular circumstances when it came to consider the question of remedy, and in particular those aspects of it which were purely financial and which depended upon or might depend upon his particular position.  In the event, as I have described, the conclusion it reached left no need to do that because it was a decision based on principle, as to which financial detail could be supplied later when implementing that decision.  And, as I have indicated, for that reason I would acquit the Panel of any unlawfulness in this regard in any event.  But it seems to me that rationality did not require the Panel here to make further inquiry or adjourn to do so: many panels might, and indeed a panel in circumstances such as this might be encouraged hereafter to do so, but the circumstances do not so obviously cry out for the gathering of that information as to oblige it.  

41.	Therefore, it has not been shown that the Panel here failed to take into account that which it should have done.  It has not been shown that it took into account that which it should not have done, nor that it took an approach which fettered its jurisdiction by thinking it could award no sums other than Special Capital Payment and Re‑settlement Grant.  It reached a decision which it was within its powers to reach and which was not so unreasonable as to be perverse.  Its decision was within the wide scope of decision making within which reasonable disagreement was possible.  Taking the broad view I have attempted to describe, it gave a complete remedy, certainly on one permissible view of the case, for the wrong which the complainant argued had been done to him, namely the loss of his career.  He had the choice, if he wished, to restore it to full health.  The case is not to be determined, as was, in part, argued, on the basis of later letters from the Secretary to the Panel or that which appeared in a skeleton argument of counsel or detailed grounds. 
 
42.	The sole remaining issue is therefore that of costs.  It was asserted by the claimant that the Panel should have awarded him the costs of being represented through what was a complex and lengthy dispute by being paid the money he had spent on his private lawyers.  The Panel had a discretion to do so.  The claimant argued that although the discretion plainly would be exercised only in exceptional circumstances, they were telegraphed as existing here by the last six words of the decision ‑ "which raised serious and complex issues".  They were the very issues upon which it was appropriate for private solicitors to be instructed.  

43.	The defendant points to the well‑publicised policy of the defendant as to the payment for the use of legal advisers set out in the complaints procedure.  Paragraph 2.17, headed "External Legal Advice" states:

"Complainants may seek legal advice from a civilian solicitor but in all cases this will be at their own expense."

44.	Despite the wording which appears absolute in its terms, it is conceded that there is a discretion.  But Mr Chegwidden submits that the default position is clear.  Just as in an internal grievance conducted within an employer's undertaking or before a tribunal, in most circumstances the expectation would be that no costs would be paid in respect of legal representation.  

45.	The subsidiary argument is that at least the tribunal might have considered exercising its discretion.  As to that, Mr Chegwidden submits that it did not have to do so without being invited to do so.  The assumption would naturally be that it would not consider the question of costs.  Here, it was never asked to do so.  The issue of costs was never raised until some time had elapsed since the decision was promulgated.  It is not therefore an error of law for the Panel to have done what it would normally be expected to do, to have adopted the default position and not to have considered doing otherwise in the absence of there being any material for it to do so. 

46.	The submission was described by Mr Dingle as not his strongest.  It was one which occupied virtually no time in oral argument before me and not much space in the skeleton argument.  In my view it would have been worth the claimant asking, for then the Panel might have had to consider the question.  But in the absence of him doing so, I do not think it was obliged to do so.  

47.	Accordingly, though it could have considered exercising its discretion, its failure to do so was not an error of law 

48.	Mr Dingle, I think I have dealt with all the points?

MR DINGLE:  Yes.

MR JUSTICE LANGSTAFF:  For those reasons, this appeal, attractively presented though it has been, must be, and is, dismissed.

MR CHEGWIDDEN:  I am grateful.  The only application is an application for the defendant's costs of this judicial review.  I trust that I do not need to make submissions on "costs follow the event" principle.  There is a schedule on costs which has been exchanged.  I appreciate that it is in a sum which is higher than would ordinarily take place.  

MR JUSTICE LANGSTAFF:  I do not have it to hand.

MR CHEGWIDDEN:  You have not?

MR JUSTICE LANGSTAFF:  Have you seen it?

MR DINGLE:  I think those who instruct me have.  I personally have not.  There is a question of principle here.  Those behind me do not have it.

MR CHEGWIDDEN:  It was served on the claimant at the latest, I believe, on Monday (but I believe it was in fact on Friday).  I can check that.

MR JUSTICE LANGSTAFF:  Let me hear the issue of principle.

MR DINGLE:  The issue of principle is that there should be no order for costs.  Indeed, costs should fall against the defendant for this reason.  This was initially flagged up ‑ ‑ it may seem unusual but it goes to the very heart of perhaps something your Lordship said midway through this morning - that the Panel was in a way acting as a mediator here.  Right from the outset of this matter, and it is flagged up in the original claim form, there has been refusal on the part of the Ministry of Defence to mediate this matter at all.  There has been one joint settlement meeting in October.  But ‑ and I will not initially go behind what was said there ‑ throughout, the claimant has made, I think, eleven offers to mediate this matter at different stages, both before and after issuing the claim for judicial review, and at every stage expressly, either in open correspondence or in response to open correspondence from the claimant or in "without prejudice" statements as to costs correspondence, the defendant has refused to mediate this matter. 
 
Your Lordship said, and I accept entirely, the range of options open to resolve this by the Panel in terms of redress were wide and they included the apology; they included a number of other matters.  Mediation has a habit of achieving things that no other mechanism can do, as is pointed out by Lord Justice Jackson in the ADR Handbook.  It is pointed out extensively in matters going back to Sir Henry Brooke, sitting in the matter of Cowl v Plymouth City Council as long ago as 1999, through the Hollins v Russell cases, Pratt v Bull, through to Halsey v Milton Keynes NHS Trust, through to the much more recent findings or decisions of, for example, Lord Justice Ward (as he then was) sitting in the matter of Rose v Bath Motor Traders, through to very recent cases emerging from a whole variety of sources ‑ PGF v OMFS it seems in the Court of Appeal ‑ saying the most intractable cases can be resolved in mediation and that a failure either to respond to mediation or mediate or unreasonable refusal to mediate where there could well have been an outcome that was appropriate for all concerned, to save a lot of costs for the individual in these circumstances, is something which should be taken into account by a court in considering, first, who should pay the costs and then on what basis.

MR JUSTICE LANGSTAFF:  You do not have those authorities to hand.

MR DINGLE:  I could.

MR JUSTICE LANGSTAFF:  I am not asking you to produce them here and now given the time.  Have you mentioned any of them to ‑ ‑ ‑ ‑ ‑

MR DINGLE:  In open correspondence and in "without prejudice" save as to costs consequences, all the authorities have been mentioned that are relevant, including the most recent ones handed down I think just before Christmas.  They were expressly referred to.  So the defendant is on notice as to what would be said by the claimant to mediate.  I can probably quote verbatim from my former role as Secretary to the Civil Mediation Council but I would not wish to do that at this time in the afternoon.

MR JUSTICE LANGSTAFF:  Mr Chegwidden, have you had a chance to consider those. 

MR CHEGWIDDEN:  I am aware that the claimant is determined to allege that the defendant has failed to mediate.  I am somewhat surprised that he suggests that in fact not only should we not get our costs but we should have to pay the claimant for failing to attend a meeting which, we now know, would have confirmed the defendant in its view that in fact it did not owe the defendant (sic) any money.  

What in fact we do have ‑ and this is extremely important in dealing with this suggestion ‑ is that there is now a judgment from Mr Justice Cranston yesterday making plain in a reasoned judgment that the claimant did not fail to mediate, and the suggestion that the defendant had refused to mediate ‑ ‑ ‑ ‑ ‑

MR JUSTICE LANGSTAFF:  The claimant did not fail to mediate?

MR CHEGWIDDEN:  I am sorry.  The suggestion that the defendant had failed to mediate in this way was not accurate.  And the reason for that is that after the granting of permission by Mr Justice Holman which we know (paragraph 4, and we can see in the bundle the permission decision is at tab 3 paragraph 4 and I can take you to it except for one small matter) at paragraph 4 Mr Justice Holman encourages the parties to consider mediation (small "m").  What happened is that as a result of that the claimant sent a letter to the defendant asking for a mediation.  The defendant obviously has to consider a number of things: the costs of the mediation, the resources available to the defendant, prospects of success considering the difference between the parties and so on.  What it did was that it proposed in writing a "without prejudice" joint settlement meeting with an agreed paginated bundle, attendance of counsel, solicitor and the parties for a whole day joint settlement meeting.  That was agreed to by the claimant and the court. 
 
In tab 4 you have a consent order which was formally approved by the Administrative Court, signed by the claimant, allowing a stay until 13 November 2015 to enable the parties to undertake alternative dispute resolution.  That was clearly by reference to the correspondence as a result of Mr Justice Holman's exhortation.  If the claimant did not think that that was an appropriate response to Mr Justice Holman's exhortation it could have said, no, we do not accept that sort of way of proceeding, but in fact it did accept.  And it was the defendant's response it did not refuse mediation.  It simply said our proposal is to a "without prejudice" joint settlement meeting.  I have the letter and I hand it up to your Lordship.  

MR JUSTICE LANGSTAFF:  It is not privileged, is it?

MR CHEGWIDDEN:  It is not headed "without prejudice" but obviously ‑ ‑ ‑ ‑ ‑

MR JUSTICE LANGSTAFF:  It talks about settlement so if it is ‑ ‑ save as to costs.

MR CHEGWIDDEN:  Save as to costs.  We are now dealing with obviously the question of costs.  I have the bundle here which has ‑ ‑ there is a letter from the claimant dated 22 June which asks for mediation and here is the defendant's response.  I can simply hand that up. (Passed) That is an offer from the defendant.  The result of that is that the claimant accepted that as a way of proceeding with alternative dispute resolution.  There was a stay ordered by the Administrative Court.  It was expressly stated by the defendant to be pursuant to Mr Justice Holman's recommendation of pursuing alternative dispute resolution.  Unfortunately, that joint settlement meeting which I attended and my friend attended and which was accompanied by an agreed paginated bundle, both sides' solicitors and a day set aside, was not successful. 
 
In light of that, Mr Justice Cranston yesterday agreed with my submission that it cannot be said that this is even remotely a case where the defendant has failed or refused to mediate.  It has proposed a form of alternative dispute resolution which is commonly employed to which the claimant agreed and to which the court gave its approval in a consent order.  So this is not a case of a defendant standing in a corner and refusing to listen, refusing to talk.  In fact, at that meeting it was the defendant who wished the meeting to go longer than the claimant intended it to.  In fact, the claimant personally had to be requested to attend the meeting because he was not even going to come into the room.  The substance of this is that Mr Justice Cranston has already made a finding that there not a refusal to mediate, and it is not correct to say so.

In any event, following the meeting which the claimant described as a "without prejudice" joint settlement meeting a very long letter was sent by the defendant to the claimant explaining ‑ again I will point this out to your Lordship ‑ ‑ ‑ ‑ ‑

MR JUSTICE LANGSTAFF:  Make sure that the other side ‑ ‑ ‑ ‑ ‑ (Document passed to judge and Mr Dingle) Let me have a look. (Pause)

MR CHEGWIDDEN:  In that letter, which those sitting behind me took some time to compose, there was an explanation as to why the view of the claimant was somewhat misguided in pursuing the claim and why the defendant had refused to make a settlement which the claimant was prepared to accept.  It sets out in quite some detail the submission which now has been found to be correct.  So this is not a case of a defendant who simply says if you want to argue about it, let us take to it court.  This is a defendant who has agreed to a formal "without prejudice" joint settlement meeting at some expense from the public purse and has ‑ following the failure of that ‑ made quite detailed clear submissions why it considers this claim cannot succeed and why at the meeting it was not the case that the case indicated prospects of success.  Therefore, because of the constraints on the Treasury, it is not possible to make a settlement offer where the prospects of the claimant succeeding are not good.
  
In any mediation ‑ decisions made in mediation ‑ there are constraints and rules that the Treasury and the Treasury Solicitor must abide by.  First of all, the costs in the first place; it is to be borne in mind that the costs of the mediator suggested by the claimant was to be no less than £2,500 ‑ I am not sure if that was per party or all together ‑ but also the question of proportionality when the case is as it is described in that letter as one that, on balance, the defendant believes is to be defended.  

In short, my submission is that this is clearly not a defendant who has failed to mediate.  It has participated in alternative dispute resolution, has made it quite clear to the claimant why it believes he will not succeed, why it will be continuing to defend this claim and as a result of today's hearing has been found to be correct.  On that basis the public should not be forced to pay for the costs of the Treasury Solicitor defending this claim which has been found to be a correct decision.  It should be the claimant who is forced to pay at least the defendant's costs.  I understand that he is the beneficiary of a "no win no fee conditional fee agreement" as to the claimant's own costs.  But he should be expected, having disregarded the letter which set out quite clearly what his prospects were from the defendant, to pay the costs that the public has paid so far of defending this claim.

MR DINGLE:  My friend stopped at 16 November.  The date is crucial because at that stage we had not had the detailed grounds of reply; we had not had the particulars of response from the defendant; we had not had the reply; there had not been the disclosure of information that subsequently came and had not been fully disclosed at that point.  So in response to that ‑ and if I may hand up ‑ from 30 November onwards, having considered various matters, I think those instructing me wrote on no less than five occasions (I do not know what was before your brother Justice yesterday in this regard) but I understand from those who appeared yesterday in the matter dealing with redaction from a document that it may have been in a similar line to this but I am not aware of these redactions which my friend has which is the correspondence after 22nd when the five offers to mediate were present.  

Mediation involves a mutual third party coming to assist in circumstances which can save an awful lot of time and money and hassle.  By saying that at the earlier stage where we did have a joint settlement meeting at a mediation that is enough and no further, and at that point all that was before the court and certainly before the parties was permission to bring the judicial review, the initial grounds and the summary grounds and response and nothing more, in my submission misses the point entirely.  What the claimant says to the defendant is all right, we will have a joint settlement meeting at this stage.  

As we move forward, then after 16 November a letter was received.  As the detailed grounds of response became available and then the various documentation was disclosed, at that point, as your Lordship will see from the correspondence, the claimant's solicitor ‑ to protect the costs interests of Mr Wildbur and his family ‑ said let us meet, let us mediate, let us resolve this without having to go through a trial.  And the response is a clear no, we shall not, we have done enough, we have met you for a joint settlement meeting where, in fairness, my friend introducing that letter of 16 November accepts not one penny was offered to resolve this.  All that was invited ‑ ‑ the only offer to emerge as he has drawn the court's attention to was, I think, that the claimant has dropped hands.  One should note that immediately before that offer considerable expense was incurred by instructing counsel because the defendant requested the "without prejudice" schedule for the joint settlement meeting so that you could understand what the exposure of the defendant or claimant was which resulted in something not at all dissimilar to that which appears at tab 7 of the bundle, which took considerable work as you can appreciate in drafting (these things do) and expense because whatever else is on a conditional fee agreement, I ain't.  

That cost for people like Mr Wildbur should not have been asked for if there was no intention to make any offer.

My friend candidly says there was no possibility of the Treasury offering any money.  They should have said so and not come because the cost of getting us all there ‑ to a joint settlement meeting all day in Salisbury ‑ and preparing when there was no offer to make is absurd.

So it is not right that this is a defendant who has done everything possible to resolve it through ADR ‑ one meting and no offer other than drop hands ‑ and then, once disclosure is complete, a stonewalling or mediation. (Pause)

Unless I can help you further my Lord, those are my submissions on the basis that the claimant has done everything possible to try to avoid the necessity of today by making the appropriate order.  And therefore, the appropriate order is no order for costs in the circumstances.

MR CHEGWIDDEN:  May I ask whether that order included the responses of the defence although there is only this half of the correspondence?

MR JUSTICE LANGSTAFF:  You had not seen ‑ ‑ ‑ ‑ ‑

MR CHEGWIDDEN:  I had not seen.  I do not know what is in there. (Pause) I am looking through and I can see there are about six letters from the claimant and one from the defendant.  That does not do justice to the correspondence.  I am not going to complete ‑ ‑ ‑ ‑ ‑

MR JUSTICE LANGSTAFF:  Can I check that I have the position broadly right in outline anyway?  Mr Justice Holman suggested that there might be talk between the parties.  ADR was set up, ADR in the sense that that includes counsel‑to‑counsel supported negotiation, round‑table settlement.  And that was done in good faith, as I understand it.  I do not think there is any allegation that it was done in bad faith.  The parties adopted lines of positions which are wide apart.  That often happens and gets bridged.  There is no requirement in the Rules, as I understand it, that when parties are of that mind it can only be resolved by mediation.  Ultimately, they have to go to court.  What matters is a genuine attempt.  At that stage there was; that was the stage before when there had been grounds and detailed response and permission but there had been none of the reply and the further submissions.

MR DINGLE:  Pre‑detailed grounds of response.

MR JUSTICE LANGSTAFF:  Yes.  Thereafter, there was correspondence which reiterated the positions of the parties.  It made the offer on the part of the defendant for mediation for the mediator.  The defendant declined that offer because it thought nothing would be achieved.  The parties made their positions clear.  The defendant did make an offer to the claimant on a drop‑hands basis.  The claimant did not regard that as an offer at all which he was inclined to accept.  That was the most so there was no point in having further mediation.

MR CHEGWIDDEN:  That, and of course that nothing that had flowed since the joint settlement meeting had in any way provided any new information to suggest that the position of the defendant suggested in November was incorrect, or that the £400,000 difference between the parties in terms of offers was something that could be bridged.  There was nothing since the joint settlement meeting that had changed the position of the defendant which required a new mediation.  

What the claimant is essentially saying is that the defendant should have agreed to spend more public money on a claim which did not deserve the expenditure of any public money because it would again reinforce simply the same factors at the joint settlement meeting, that the defendant believed that it had a strong case and that the claimant could not succeed.  But it was prepared at the joint settlement meeting to forsake its claim to costs up to that point.  If the claimant does not do that and ignores that and proceeds to a hearing and then the defendant wins it seems to me the classic case, when a defendant has put a claimant on notice, he has ignored that and he has not succeeded and now the public deserves not to have to shoulder the costs of his litigation.  
That is it.

MR JUSTICE LANGSTAFF:  The fact that it is a public body I do not think I can take into account, can I?

MR CHEGWIDDEN:  No.
MR JUSTICE LANGSTAFF:  Anything more you want to say?
MR DINGLE:  No. 

Ruling 
MR JUSTICE LANGSTAFF:  In my view the starting point in a case like this where matters have been contested and the defendant has succeeded is, absent some particular reason why not, the claimant should bear the costs of the proceedings.  The reason which is suggested why not in this case is that there has been a failure to take extra‑judicial steps to resolve the proceedings, in particular by way of mediation.  

The principles do not in my view begin and end with mediation but with genuine attempts outside the court room to resolve the differences between the parties.  There is no doubt that that was undertaken between the parties ‑ both of them are to be complimented ‑ following a recommendation that something of that sort take place made by Mr Justice Holman when he granted permission.  

A meeting took place in October.  The parties were some distance apart.  Despite the time and the best efforts of those there, no settlement was reached.  Offers were exchanged: that on the defendant's part was a drop‑hands offer which plainly carried with it the implication that an application for costs in the claim might be expected to follow should the defendant succeed.  

Of the correspondence which took place thereafter I have seen perhaps a slightly selective bundle ‑ I do not think much turns on that ‑ from the claimant which shows that further court documents were prepared; the court proceedings approached; they recommended to the defendant that they enter mediation; the defendant, as I understand it, did not see the point given the previous proceedings.  I do not think that that was an unreasonable stance for the defendant to take at that stage given the particular differences between the parties and the documents still outstanding and given the absence of any particularly new and surprising point that had emerged during the course of the documentation.  I am aware that further points had arisen for which, although no permission was granted, there was no objection taken by the defendant when they were raised before me formally until the end of the submissions.  But, in any event, I have found they were not good points.  

I have concluded therefore that in principle there is not sufficient in this case to displace the starting presumption with which I began.  The claimant, it seems to me, should in principle pay the defendant.  

As to the assessment, do you ask me to make a summary assessment or would you prefer to have detailed assessment?  I suspect given the amount you might.

MR CHEGWIDDEN:  My instructions are to seek summary assessment.  That is why the schedule has been prepared.  I appreciate that ordinarily where a party asks for detailed assessment there is a certain hesitance on the part of the judiciary to do so.  I also take into account the time which also causes a certain reluctance to do so.  I do not want to push that very strongly, but the submission is for summary assessment.

MR JUSTICE LANGSTAFF:  You will be fed up with judges in this case saying this is something you might want to put your heads together on.  If you can, it seems to me you should.  

I can see that the amounts claimed are, as you have confessed, perhaps something usually applied in cases of this sort.  I see absolutely no objection to the brief fee, may I say.  But there is something of half‑a‑week sending letters, and letters out and e-mails at the Grade 6 rate.  There is very nearly a whole week ‑ in fact, probably a working week ‑ on the second page, e-mails.  One can see that in detail the amount might come down a bit, if not more.  I am not in a position now I think sensibly to evaluate whether that should be, but in line with the principles which affect us and the overall assessment of whether it is disproportionate you might like to have a word with each other.  

The formal order I make is that the claimant pays the defendant's costs, those costs to be assessed subject to detailed assessment.

MR CHEGWIDDEN:  I am grateful.  There is one further query as to the carriage of the draft order for your Lordship.  I appreciate it is the claimant's claim.  I am happy ‑ ‑ ‑ ‑ ‑

MR JUSTICE LANGSTAFF:  I think it probably falls to you to bear the expense of doing it.  But I would not want you to put that expense on the ‑ ‑ ‑ ‑ ‑

MR CHEGWIDDEN:  No.  That will not go on the costs schedule.  That is for sure.