Thompson, R (On the Application Of) v Secretary of State for the Home Department [2003] EWHC 2382 (Admin)

Case No CO/3635/2003[2003] EWHC 2382 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 2nd October 2003
Strand
London WC2
B E F O R E:
MR JUSTICE WALL
Between
THE QUEEN ON THE APPLICATION OF THOMPSONClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant-v-THE CHIEF CONSTABLE OF NORTHUMBRIA POLICE(INTERESTED PARTY)
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS R SCOTT-BELL (instructed by Hindle Campbell) appeared for CLAIMANTMR P NICHOLLS (instructed by Treasury Solicitors) appeared for DEFENDANTMR M GRAHAM (instructed by Dickinson Dees) appeared on behalf ofthe INTERESTED PARTY
J U D G M E N T(As approved by the Court)
Crown copyright©2nd October 2003
[1]MR JUSTICE WALL: This is an application by Alan William Thompson, the claimant, a former police constable, for an order quashing a decision of the Secretary of State for the Home Department made initially on 13th May 2002 and reaffirmed on 17th March 2003. The decision under challenge is that the claimant should pay his own costs incurred in connection with his appeal against findings of misconduct towards female members of the police force occurring whilst the claimant himself held the rank of police constable in the Northumbria Police.[2]The findings against which the claimant appealed were made on 26th August 1999, following a four day hearing conducted by the Chief Constable of Northumbria. The subsequent appeal, which was a complete rehearing, was heard by a tribunal chaired by Mr Mukhtar Hussain QC. It recommended to the Secretary of State that the claimant's appeal should be dismissed and that the Chief Constable's decision that the claimant be dismissed from the police force should be upheld. Most relevantly, for the purposes of today's hearing, it also recommended that the claimant should be ordered to pay his own costs.[3]These recommendations were accepted by the Secretary of State who dismissed the claimant's appeal and, as indicated, directed that the claimant should pay his own costs of the appeal.[4]The Secretary of State's decision is challenged today on one basis only, namely, that the claimant had a legitimate expectation that his costs would be paid by the police authority. That was not, however, the only basis upon which the claimant's application for judicial review was initially conceived, and in order to understand the argument before me today and how the claim is put it is, I think, necessary to look at the facts in a little detail. None of the facts is substantially in dispute.[5]At the time of the original disciplinary hearing before the Chief Constable in August 1999 the claimant was represented by a particular firm of solicitors and by counsel. That firm continued to represent him for some time, but in October 2000 it appears they parted company and, for a time, the claimant conducted his own affairs. There was correspondence between him and the chairman of the appeal tribunal. It was quite clear that Mr Thompson was conducting his appeal vigorously. He filed a notice of amended grounds running to some 107 paragraphs.[6]In June of 2001 Mr Thompson sought the services of Messrs Hindle Campbell, who, in due course, were able to obtain the papers from the previous solicitors. Messrs Hindle Campbell represented the claimant in his appeal.[7]Before they were instructed, or whilst they were in the process of accepting instructions, the force solicitor, Miss Denise Aubrey, contacted Mr Campbell of Hindle Campbell. The purpose of the contact, as she makes clear in her statement, was essentially as a matter of courtesy to touch base, but she also left a message, because Mr Campbell was not there when she telephoned, in the following terms as recorded in her subsequent attendance note:
"As a matter of courtesy, if his consideration was one of costs, then he should be aware of the old law in the Police Act which meant that the police authority would pay the costs whether or not he was successful. I was aware that not all solicitors were aware of this provision and I was also not aware as to whether he was still supported by the Federation and thus whether the Federation had pointed this out. I could find the law if he was unaware of it, but this was just a matter of courtesy because I was aware that not all solicitors are aware of the old procedure."
[8]In her statement Miss Aubrey explains the purpose of the telephone call. Almost as an afterthought she said, having referred to touching base and as matter of courtesy, she mentioned the question of costs. She goes on:
"It has been my experience that solicitors inexperienced in dealing with Home Office appeals, assume that 'costs follow the event'. I wanted therefore to point out that this was not the case and to direct Mr Campbell to the relevant provision. I did say that the Police Authority would pay the costs whether or not he (Mr Thompson) was successful, i.e, costs do not follow the event. I did not point out the exceptional case where an order may be made for an appellant to pay his own costs, because such was not at the forefront of my mind. I did not think I was giving legal advice -- I was merely hoping to point another solicitor in the right direction. If I had in any way thought that I was making a legal submission which would become the subject of proceedings I would have done it properly and in writing. In my experience, solicitors help each other on a daily basis but it is the solicitor with a duty to his client who has the duty to look up the law for him/herself. I offered to send Mr Campbell a copy of the relevant provision. I never received such a request."
Mr Campbell duly represented the claimant in the appeal and instructed counsel to conduct it.[9]The appeal was, as I indicated earlier, a complete rehearing. A number of witnesses were called who had to be cross-examined and were cross-examined. At the conclusion of the hearing the tribunal did not raise with either side the question of costs. One appreciates, of course, that if immediately after a hearing, before it has announced its decision and before it has even deliberated, a tribunal comprising three members enquires as to whether or not there are exceptional circumstances requiring the appellant before it to pay his own costs, that tribunal might well be perceived as having already made up its mind. But it seems to me, at least, that it would have been appropriate, once the tribunal had reached a conclusion and decided, if it had, that the conduct of the claimant, or some other factor, rendered the circumstances so exceptional that a recommendation that the claimant pay his own costs should be made, then plainly the appellant, in my view, should have been given an opportunity to deal with that. The first inkling that the claimant was to pay his own costs came when the decision of the tribunal in writing was given. In other words, it came as part of the tribunal's decision.[10]It, therefore, was on the two bases, firstly, legitimate expectation based on Miss Aubrey's representations and, second, procedural unfairness and failure to obey the rules of natural justice that the application for judicial review was initially launched.[11]Permission to proceed was granted by Keith J on 7th October 2002 in fairly robust terms. As a consequence the Secretary of State, who was of course the decision maker and thus the primary defendant, made an offer to the claimant along the lines that he would, if the proceedings were stayed, give the claimant the opportunity to make representations to the tribunal on costs and for the tribunal, therefore, to reconsider the matter in the light of those representations.[12]Thus it was that the schedule of agreed terms were placed before the court and a consent order made on 31st December 2002. The schedule of terms were that the claimant and the interested party (that being the Northumbria police) were invited to make representations as to the costs of the disciplinary appeal proceedings, such representations to be made by 24th January 2003, to be put before the tribunal for there to be a new recommendation to the defendant. Should the tribunal consider it necessary there was to be an oral hearing for determination of the issue of costs. The tribunal was to give the Secretary of State notice of its recommendation by 21st February 2003. On that basis there was a stay. The defendant was to make his order after consideration of the recommendations by 21st March 2003.[13]The claimant duly made detailed submissions by way of representations in writing. A reference was made to the prolix nature of the pleadings when the claimant was acting in person, the delay which had occurred before the matter had actually been heard, the advantage of having the claimant represented, the need for equality of arms, the minimisation of discomfort to witnesses based on the personal nature of some of the cross-examination and the input by the solicitor acting on behalf of the interested party, Miss Aubrey, in the conversations which she had had.[14]It is, however, important to note, (and I notice at this point in the representations it also appears in the grounds, and very properly so, if I may say so) that Hindle Campbell accept that they did look at the law and discovered that costs could be awarded against Mr Thompson. They accept that Mr Thompson was so advised. However the force's solicitor's indication that it was, in effect, highly unusual for costs to be awarded against an appellant is a matter (they argue) that did sway Mr Thompson in favour of seeking the services of a solicitor and counsel. It also swayed Hindle Campbell's decision in accepting instructions as Mr Thompson was in a difficult financial position. On that point I was shown today, with the agreement of all parties, a statement by Mr Thompson which reinforces that proposition. The representations go on to deal with the effect of an award against the claimant and the merits of the appeal.[15]I think the Secretary of State's initial proposal was simply that the claimant should make representations. The claimant agreed, however, that representations should also be made by the Northumbria police. He did so on the basis that those representations would be supportive of the his position rather than hostile to it. Complaint is made of the fact that Dickinson Dees, acting on behalf of the interested party, put in a letter of some two pages setting out its views based on the findings which the tribunal had made. The letter points out that the interested party had conceded that the ordering of costs to be borne by the appellant was an exceptional finding, but one which may well be justified, and pointed out that it had also been conceded in the interests of fairness that the appellant should have the right to make submissions against such an order.[16]It goes on to say, however:
"This process now allows him to do so. However in our client's view the original order as to costs remains a proper exercise of discretion and unless swayed by the submissions of the appellant the tribunal should not change their earlier recommendation on costs."
[17]As I say, complaint is made by Mrs Scott-Bell, on behalf of the claimant, that Dickinson Dees took that opportunity and expressed themselves in those terms. I feel bound to say, however, that in my judgment there was nothing improper or inappropriate in the interested party, having been given the opportunity to make representations, being entitled to do so, provided, of course, that it did not either misrepresent, or in any way seek to conceal what its previous position had been. That that is not the case is manifest.[18]One thing that stands out from this case, it seems to me, and it is a pleasure to say it, is the integrity of the lawyers involved. I say this since in the amended grounds for judicial review, to which I shall come in just a moment, Mrs Scott-Bell again repeats what was previously in the representations, namely, an acknowledgment that Mr Thompson was advised, in spite of what the force solicitor stated, that he may be ordered to pay his costs of, or all the costs of an appeal under section 37(3) of the Police Act 1964 as amended. She also very fairly points out that at one of the Interlocutory Hearings the chair of the appeal tribunal had pointed out that there might be costs implications if witnesses were called unnecessarily.[19]The representations having all, therefore, been made, the tribunal reconsidered the matter and came back in robust terms supporting its original decision. They set out Mrs Scott-Bell's submissions in six numbered subparagraphs and they make a reference to the letter from Dickinson Dees. They say that, whilst they have carefully considered the submissions made by the appellant's counsel, they saw no merits in the argument that had the appellant not been legally represented the appeal would have been longer, or that witnesses would have been cross-examined at length by "their accuser". They say:
"The appellant's case was fully put and the witnesses were cross-examined. PC McIntyre was cross-examined on some personal and very private matters, the sole purpose being to embarrass her. Furthermore, the appellant put the complainants through two hearings and made them relive these unpleasant and dreadful experiences."
[20]They then dismissed any Article 6 argument. They dealt with the legitimate expectation argument quite robustly in a paragraph and they concluded with these two paragraphs:
"9. The original appeal was without merit. The Chief Constable had not believed the appellant. The appellant knew how he had behaved towards the complainants. There was overwhelming evidence against the appellant. The appeal was misconceived. Complainants were made to re-live their dreadful experiences. The appellant appeared to enjoy their discomfort and embarrassment. 10. We bear in mind the appellant's financial circumstances. We remind ourselves that ordering an appellant to pay his own costs is an exceptional step. But the nature of the allegations, pursuit of the appeal in the face of overwhelming evidence, the nature of some of the questions put to the complainants and his behaviour at the appeal does make this case exceptional."
[21]On that basis the recommendation to the Home Secretary was retained, and on 17th March 2003, as I have already indicated, the Secretary of State accepted the recommendation and confirmed the order.[22]Mrs Scott-Bell, rightly in my view, accepts that these events and the second judgment of the appeal tribunal deals effectively with the argument as to the breach of natural justice. The claimant has had the opportunity to argue the question of costs and the exceptional nature of such an order, including the proposition within it that he had been given an assurance by the force's solicitor that in normal circumstances he would not have to pay them. The tribunal reached its conclusion. It was one plainly it was entitled to reach. It has now considered the arguments on both sides and judicial review no longer arises in respect of that limb of the decision.[23]That leaves the question of legitimate expectation on its own. It is, as will be immediately apparent, somewhat exposed. In a concise series of grounds Mrs Scott-Bell really repeats the arguments which had been previously rehearsed. It was exceptional to make such an order. The Federation usually funded the initial disciplinary hearing and the police authority usually funded the appeal. Miss Aubrey had stated that the costs would be met, irrespective of whether or not he was successful. That had been profoundly influential on both the claimant and on the solicitors themselves, although they had advised, as she very fairly indicates, that Mr Thompson was himself put in the full picture as to his liability in exceptional circumstances.[24]Mrs Scott-Bell repeats the arguments as to the presentation of the appeal and the need for the witnesses to attend and to be cross-examined. The hearing had been appropriately and properly conducted and it was wrong in those circumstances to order the claimant to pay his own costs without any form of warning. She also repeats the argument, which I have already indicated does not particularly impress me, that it was wrong for the interested party in effect to lure the claimant into a false sense of security by presenting initial arguments apparently in his favour and then putting in representations to the appeal tribunal which were not supportive.[25]Those, therefore, are the circumstances in which the application comes before me this afternoon. The first question it seems to me is a simple one, on the facts -- and it is perhaps for this reason that I have set out the facts in such detail -- is a legitimate expectation established at all? What was the claimant's expectation on the facts? The expectation, as I summarise it, was in the following terms. He had been told by Miss Aubrey that the normal practice was that the police authority would pay his costs and that he would not have to pay them. But he had also been told that the tribunal had the power to recommend to the Secretary of State in exceptional circumstances that he pay his own costs, and indeed all the costs, and there had been also the warning at the interlocutory hearing from the chairman of the tribunal. So his expectation, in my judgment, could not possibly have been that his costs would be paid in any event. It is essentially an expectation that his costs be paid in any event that Mrs Scott-Bell has in my view to establish. In my judgment the facts simply do not warrant it. So in these circumstances, in my judgment, no legitimate expectation is established.[26]The Secretary of State makes two submissions, one of which essentially is that which I have just indicated only put in slightly different terms. The Secretary of State also takes the point that since any representations made by Miss Aubrey were not made by the Secretary of State, or on his behalf, but made by a separate person, the Secretary of State cannot be said to have given the claimant any form of legitimate expectation. Counsel, Mr Nicholls, relies on Bibi and on the proposition that the expectation must be induced by the decision maker either expressly by means of a promise or undertaking, or implicitly by means of settled past conduct or practice.[27]It does not seem to me that I have to enter into that particular debate. I can quite see that if a representative of the interested party makes a representation which is wholly unwarranted and ultra vires then the Secretary of State could not be bound by it. But I have some difficulty with Mr Nicholls' argument, because it seems to me that the guidance given by the Secretary of State for the conduct of appeals means that he cannot entirely divorce himself from a sensible practice, (engaged in this case by Mrs Aubrey) of encouraging representation of an appellant to enable the process to operate efficiently. But, as I say, I do not think I need to reach that point. This case, in my judgment, falls at the first factual fence. There simply was not here, in my judgment, a legitimate expectation at all.[28]I do not think I can leave the case, because the application must be dismissed, without saying that in my view Miss Aubrey has throughout behaved entirely properly. The law in relation to the payment of costs on appeals has, as I understand it, now changed and therefore this case is to a substantial extent academic, but I think her initial approach to the perspective solicitors for the claimant was an entirely proper and sensible one and, equally, I admire her straightforwardness. She has always made clear exactly what she said. She recorded it. The attendance note was produced. Her statement makes clear exactly what her position has been throughout. She has at no stage sought to retract or go back on it, and in my judgment the statement she made in these proceedings after the amended grounds were filed is precisely in the same mould. Equally I would like to pay tribute to Mrs Scott-Bell who has conducted this case in an entirely open and straightforward way and thereby has obviated the need for inferences to be drawn and arguments to be adduced on issues which might well have needed further investigation, or clarification, without her clear and very straightforward presentation.[29]But, having said all of that, it seems to me that this application must be fail. Accordingly it will be dismissed.[30]MR NICHOLLS: I would ask for an order that Mr Thompson pay the Secretary of State's costs.

MR JUSTICE WALL: What costs and from when?

[32]MR NICHOLLS: My primary position would be the costs of the action, because, although I accept that the action originally commenced on two grounds, the additional costs which can be attributed to the ground that fell away are at best minimal. My secondary position is costs after the date of the Secretary of State's letter, 6th November 2002, it is page 96 of your bundle, when the offer was made which has in effect disposed of this case. On 6th November the Treasury Solicitor offered the opportunity for further representations. The consequence of that was that the natural justice ground fell away. All that one has been left with is the legitimate expectation ground and that is the ground upon which the Secretary of State has succeeded. So my secondary ground would be to ask for costs as from that date.[33]MR JUSTICE WALL: Yes. Is it the -- just help me, are they to be assessed or to be taxed?[34]MR NICHOLLS: On the basis that they are the costs of the action I shall invite you to order that they be the subject of a detailed assessment. However, I will also invite you to make a modest, I hope, payment on account of costs. That may be helpful, before I sit down, so my learned friend understands the position.

MR JUSTICE WALL: I take it there is no application by the interested party?

[36]MR GRAHAM: My Lord, there is and there should have been filed with the court a schedule of those costs.[37]MR JUSTICE WALL: It seems to me that -- at the moment I am thinking aloud for Mrs Scott-Bell's benefit -- it seems to me that up until the moment, whether it is the letter written by the Secretary of State making the proposal, or whether it is the receipt of the tribunal's second set of reasons, I certainly see no basis on which the claimant should pay the costs of either party because it seems to me he was on strong ground up until that point. But as far as you are concerned, Mr Graham, it seems to me a concern that -- I quite appreciate you wanted to be here to protect the position of Miss Aubrey, but really was it necessary for you both to be here? If so, why should the claimant pay both of your costs?[38]MR GRAHAM: My Lord, yes, is the short answer, because the ground that remains, and has been dealt with by the court today, is that which touches directly upon what it is alleged that Miss Aubrey said and what the consequence is said to be of what she said. So in certain respects the natural justice procedural fairness ground having been disposed of, my learned friend could have, put in a colloquial sense, taken a back seat because what was being alleged directly related to the interested party's behaviour, albeit that the decision challenged was that of the Secretary of State. It all flowed from the actions of Miss Aubrey and we learn to a certain extent those who instruct me today.[39]My Lord, can I say in relation to the schedule of costs this was discussed with my learned friend, Mrs Scott-Bell, before today's hearing. The figure was recalculated to take out that amount of costs which related to the natural justice procedural fairness point, being conscious of the way that things could have developed and have in fact developed. The amount of time and energy devoted to that aspect of this case from the point of view of the interested party was minimal because, of course, the interested party did not oppose that aspect of the appeal.

MR JUSTICE WALL: No, quite.

[41]MR GRAHAM: In fact, a generous reduction I am informed and my learned friend is aware of this, of £1,000, so the interest party's cost of defending this matter, or being involved in this matter, in relation to the specific ground which deals expectation, legitimate expectation is £12,869.20. That is the amount referred to on the schedule less the £1,000.[42]MR JUSTICE WALL: I see. Well, sorry, I beg your pardon. Yes, Mr Nicholls.[43]MR NICHOLLS: I was about to give your Lordship some ball park figures. I don't know whether that is helpful, if whether you would rather hear from Mrs Scott-Bell first.[44]MR JUSTICE WALL: If you going to ask me to make an assessment, I think would probably prefer to make an assessment.[45]MR NICHOLLS: What I was going to do was to ask you to direct that the Secretary of State have his costs to be the subject of detailed assessment. The Secretary of State estimated his costs of the order of £10,000. What I would invite you to do is to make an order for payment on account of costs of £2,000. I pick that sum, having regard to the observations that you have just made about the original claim forming two grounds and in the hope that the figure I have identified could not conceivably be more than would be payable on a detailed assessment having regard to the legitimate expectation ground solely.[46]MR JUSTICE WALL: Yes. Thank you very much. Mrs Scott-Bell, what do you say?[47]MRS SCOTT-BELL: My Lord, in relation to what my learned friend Mr Graham had to say about costs, my Lord, the fact that the interested party did not, as it were, oppose -- well, supported the notion that the claimant should be heard on the question of costs really was of little effect. In my submission neither party really can expect Mr Thompson to pay the costs up until the date of the, as it were, second order of the Secretary of State and that is dated 17th March.

MR JUSTICE WALL: Yes.

[49]MRS SCOTT-BELL: So, my Lord, in respect of both defendants I would invite court not to him to pay any costs prior to that.[50]I know I said, and your Lordship was aware that at an earlier occasion that £1,000 up until the letter that we said we were supporting the judicial review, well, they supported it, but they still -- for whatever reason the Secretary of State chose not to support that and we were forced into the position of taking judicial review.[51]My Lord, can I invite the court to pages 38 and 39 of the bundle which details, I put it like this, as it were, letters before action. We did invite the Home Secretary to review that decision, albeit perhaps not couched in terms that necessarily would I would have couched them in, but it was certainly an invitation to the Secretary of State before launching judicial review. Obviously that is only on the question of the first ground. My Lord, they chose not to hear us on the question. We were forced into seeking --[52]MR JUSTICE WALL: Are you seeking an order that the Secretary of State should pay your costs up until --[53]MRS SCOTT-BELL: My Lord, I am.

MR JUSTICE WALL: The second decision of the appeal tribunal?

[55]MRS SCOTT-BELL: Yes, I am.

MR JUSTICE WALL: Yes.

[57]MRS SCOTT-BELL: Not just that we shouldn't pay theirs, but actively that the Secretary of State should pay Mr Thompson's costs.[58]MR JUSTICE WALL: You say that in part because here you are writing a letter before action and getting a rather dusty answer.[59]MRS SCOTT-BELL: My Lord, yes.[60]MR JUSTICE WALL: Saying that they don't consider you have any basis for judicial review and will resist any such application on these grounds, so you have no choice but to take proceedings.[61]MRS SCOTT-BELL: Yes, and it goes on, page 40.[62]MR JUSTICE WALL: I am looking at the Secretary of State's response which is really quite off putting, isn't it?[63]MRS SCOTT-BELL: Yes.[64]MR JUSTICE WALL: So you say no choice but to issue proceedings. You issue proceedings. You are on a pretty strong winner for quashing on the basis of procedural unfairness.[65]MRS SCOTT-BELL: Yes.[66]MR JUSTICE WALL: So the Secretary of State at that point comes up with his offer. You accept the offer and the point where you -- it seems to me where you come to difficulty is where you have the tribunal's response, you have the Secretary of State's second judgment, second order, and from that point on the choice is yours as to whether you go on and that is where you start getting into difficulty.[67]MRS SCOTT-BELL: Yes.[68]MR JUSTICE WALL: What do you say about -- I mean, are you -- what do say about paying both the interested party's and the Secretary of State's costs?[69]MRS SCOTT-BELL: My Lord, I would respectfully say that certainly at least so far as representation today is concerned, perhaps only one counsel needed to have attended. I do accept that Denise Aubrey needed to be represented, and obviously --[70]MR JUSTICE WALL: That is largely because Mr Thompson really didn't really accept that she was playing straight. That is why she has to be represented.[71]MRS SCOTT-BELL: Yes. Although it was never, and there is correspondence to the effect, it was never suggested that she in any way deliberately misled. It was perhaps an unfortunate conversation.[72]MR JUSTICE WALL: Yes. That is a difficulty. You must understand it, coming from the Family Division, we are always criticising why are you all here. We keep asking this perpetual question in the Family Division, so I am just getting my own back a bit. If I may say, I think it is a fair concession. I think Miss Aubrey has been vindicated by the events. It may be, therefore, that I can't be critical of Mr Graham for being here and the Secretary of State has to be here. Very well.[73]MRS SCOTT-BELL: But, my Lord, so far as the quantification of costs, I unfortunately only have my costs up to today's date. I am not able to say what was before 17th March, but I would invite the court, if allowing costs against the Secretary of State, for that to be taxed in the usual way.[74]MR JUSTICE WALL: Yes. Very well. I think the reply needs to come from you, Mr Nicholls.[75]MR NICHOLLS: Yes, briefly on the application of costs as against the Secretary of State for the period prior to his offer. May I make two points about that. In substance I say that the Secretary of State has succeeded in resisting this claim. If I am wrong about that, and it is appropriate to award the claimant any costs prior to the Secretary of State's offer, first, they must be set off against costs he must pay and, secondly, one recognises that they must be pretty minimal on the basis that the permission was granted in October, then the case is stayed, so it is simply a proportion of issuing the claim form, but it would be not be proper within those costs to be the subsequent costs of making submissions to the tribunal because that does not fall under part of this litigation.[76]Imagine this case, my Lord, imagine a case where the sole ground which is proceeded with to trial is the natural justice ground and imagine that the claimant then succeeds, the matter would be remitted to the tribunal with a direction to reconsider and he would then have to bear the costs of making submissions.[77]MR JUSTICE WALL: If you had not made your offer and he had fought and the claimant had won, the claimant wouldn't have got any costs incurred in the further submissions to the tribunal.[78]MR NICHOLLS: Perhaps the easier way to think about it is if, as it were, the tribunal had of its own motion said this is our decision, we are thinking about costs, please tell us what you think, then we would have incurred the costs of making those submissions. So that is not connected with the costs of this litigation but subsequent to the Secretary of State's concession. It would have been incurred whether the tribunal had got it right in the first place, or even whether the Secretary of State had pressed on and the decision had been quashed. So one ends up in a position where the overwhelming bulk of the costs involved in this case relate to the preparation and the presentation of the legitimate expectation argument in relation to which the Secretary of State has succeeded.[79]So, having regard to that, my primary argument is simply that the Secretary of State should have his costs as assessed. If I am wrong about that, then Mr Thompson has his costs in relation to the natural justice argument up until the Secretary of State's offer to be set off as against the Secretary of State's costs.[80]I hope, given the sums I mentioned to the court earlier, that that does not have an impact on the application I made for a payment on account of costs.

MR JUSTICE WALL: The difficulty is that I know nothing about Mr Thompson's circumstances, or do I?

[82]MRS SCOTT-BELL: My Lord, there is within the ... if you bear with me.[83]MR JUSTICE WALL: There was in his representations to the tribunal there was, but that is presumably historical now.[84]MRS SCOTT-BELL: My Lord, not that historical. He certainly is in, if I put it like this, in an impecunious position. At page 78 of the bundle has his position certainly as up until the 15th January of this year. Things, I don't believe, have really changed since then. Obviously I don't have his year 2002 to 2003 income.

MR JUSTICE WALL: Yes.

[86]MRS SCOTT-BELL: But, my Lord, certainly it would be fair to say he is not a wealthy man and certainly has no pension.

MR JUSTICE WALL: No.

[88]MR NICHOLLS: My Lord, there is some law on this if it helps. If your Lordship has the White Book, volume 1.

MR JUSTICE WALL: Yes.

[90]MR NICHOLLS: Page 1004.

MR JUSTICE WALL: This is autumn 2002?

[92]MR NICHOLLS: Sorry, I have got 2003.

MR JUSTICE WALL: I am sure you are more up to date.

[94]MR NICHOLLS: The case is February 2002, so it may or may not have made it in.

MR JUSTICE WALL: What page?

[96]MR NICHOLLS: It is paragraph number 44.3.13 dealing with payment on account of costs. And what I have at the top of my page of 1004 is reference to a case called Allason v Random House UK Limited, Laddie J.[97]MR JUSTICE WALL: I am sorry, these are not my copies and they are out of date. May I look? Read it out to me.[98]MR NICHOLLS: It says:
"Where the resources of a party ordered to pay costs are limited, the court should not force the receiving party to engage in detailed assessment proceedings before receiving any money at all, since this would merely require the expenditure of further money on a process which would produce no return. The judge awarded interim payments in an amount which he regarded as the absolute bear minimum that the defendants could hope to recover on a detailed assessment: Allason v Random House Laddie J."
[99]I hope that our approach is consistent with what the judge said in that case. If I can hand it up. (Handed) (Pause)[100]MR JUSTICE WALL: Yes. This is not particularly complicated litigation. I would have thought the overwhelming likelihood is that competent solicitors are going to agree figures without the need for an assessment. Perhaps you don't sound convinced, or you do not look convinced.[101]MR NICHOLLS: One would hope so. I rely simply on the practice indicator that the court ought to consider making a interim payment, or rather a payment on account.[102]MR JUSTICE WALL: Yes. Do you want to say any more on that point, Mrs Scott-Bell?[103]MRS SCOTT-BELL: My Lord, clearly I am unaware of your Lordship's view as to whether or not the Secretary of State pay his, pay the claimant's costs up until --[104]MR JUSTICE WALL: I think the point being made by Mr Nicholls is that even if I do take that view, your costs up to the point when the Secretary of State makes the offer, are going to be relatively minimal because there were no court proceedings, there was the issue of proceedings, there were grounds and so on, and no doubt some preparatory work, but in terms of the litigation that has gone on since that is going to be de minimis really, and even if I ordered a set-off there is still going to be a substantial bill owing to the Secretary of State. That is what he is saying.[105]MRS SCOTT-BELL: My Lord, as far as payment on account, my Lord, I am of the view that the solicitors would be able to sort it out amongst themselves, but obviously ...[106]MR JUSTICE WALL: They may be able to sort out of the figures but I shouldn't imagine they will necessarily -- they have clients who might not be too keen to pay without an order.[107]MRS SCOTT-BELL: I couldn't possibly comment, my Lord. I shall say no more.

JUDGMENT

[108]MR JUSTICE WALL: I am now asked to deal with the costs of these proceedings. My first thought is as follows. Although in the overall scale of the costs the costs incurred by the claimant up to the point at which the stay was agreed, namely, 31st December 2002, may not be substantial, it does seem to me that the claimant is entitled to his costs up until that point, that is the stay, the consent order of 31st September 2002 against the Secretary of State.[109]I might not have reached that conclusion had it not been for the firm letter which the Secretary of State wrote on 9th July, making it quite clear that the conduct complaint section did not think that the claimant had any basis for judicial review and would resist any such application. Plainly the claimant had a good case for judicial review on procedural irregularity. So the claimant had no choice but to issue proceedings. Having done so, the Secretary of State then made his sensible proposal and the stay was granted. So I propose to direct that up until 31st December the Secretary of State should pay the claimant's costs.[110]That seems to me to be the right date, because, as Mr Nicholls rightly pointed out, had the matter litigated and had the order been quashed, the costs of making fresh representations to the tribunal would not have been covered and therefore it would not be appropriate to make the Secretary of State pay those costs. But it does seem to me that once the claimant issues his amended grounds of claim and does so on the basis of legitimate expectation alone, he is vulnerable to orders for costs and should be ordered to pay the costs of the Secretary of State from that point.[111]Initially I was of the view that the claimant should really only have to pay one set of costs and that he should not have to pay for the interested party. But I have been persuaded by Mr Graham that he should, principally because it was necessary, and again Mrs Scott-Bell realistically recognises this, in my judgment for counsel on behalf of the interested party to be here to protect the interests, in particular, of Miss Aubrey. The submissions made by the Secretary of State certainly in his first, principal, argument, although it is one that I did not accept, sought, no doubt elegantly and legally correctly, to distance the Secretary of State from Mrs Aubrey Therefore it might have been difficult for one counsel to have represented both parties. So I am satisfied that the claimant should pay the costs of both the Secretary of State and the interested party from the date of the amended grounds.[112]Clearly the costs which the Secretary of State will have to pay the claimant will be off set against what I anticipate be a much larger bill which the Secretary of State will produce. It seems to me that in these circumstances, given two sets of costs, it is difficult to make an immediate summary assessment. Therefore there will have to be a detailed assessment if the sensible solicitors on all three sides cannot reach agreement as to the figures.[113]Mr Nicholls indicates that his costs are likely to be in the order of £10,000 and he points me to a decision of Laddie J called Allason v Random House, reported in the Civil Procedure Practice at 44.3.1 (3) in these terms:
"Where the resources of a party ordered to pay costs are limited, the court should not force the receiving party to engage in detailed assessment proceedings before receiving any money at all since this would merely require the expenditure of further money on a process which would produce no return. The judge awarded an interim payment in an amount which he recorded as the absolute bare minimum that the defendants could hope to recover on a detailed assessment."
Accordingly Mr Nicholls invites me to make an interim order in the sum of £2,000.[114]I am conscious of a number of competing factors here. Whilst the claimant is entirely responsible for his own misfortune, he nonetheless is, according to the documentation he put before the tribunal on the second occasion, not in affluent circumstances and therefore clearly falls into Laddie J's category of someone of modest means. He obviously has substantial responsibilities. I am also conscious that I am dealing with a department of state and a police authority. I very much hope that the award of a modest sum on account, which I propose to make, will focus the mind of the applicant and encourage him to instruct his solicitors to agree a figure which should be readily capable of agreement in this sort of case.[115]But in all of the circumstances, particularly taking into account the very modest nature of the claimant's means, I propose to limit the amount of the interim award in favour of the Secretary of State to £1,000. Otherwise there will be a detailed assessment of all three parties' costs and a set-off in relation to the costs owed by the Secretary of State to those which he will receive consequent upon the more substantive order.[116]Is that reasonably clear?[117]MR NICHOLLS: Thank you very much.[118]MRS SCOTT-BELL: I am grateful.[119]MR GRAHAM: My Lord, I am sorry, in the absence of a figure being agreed for the interested party and the need for a detailed assessment, could I invite that there is a payment on account in relation to the interested party?[120]MR JUSTICE WALL: You can invite me, but I don't think you will succeed, Mr Graham, because I think the idea of the £1,000 is to encourage. I think anything more might be too much a burden and I will leave it at £1,000 for the Secretary of State.[121]MRS SCOTT-BELL: My Lord, might I clarify the date? Your Lordship mentioned a date, the amended grounds for a claim for judicial review, is that the date of them, or the date they were logged?

MR JUSTICE WALL: Sorry, I was probably vague because I didn't know either.

[123]MRS SCOTT-BELL: It is 18th June. My grounds are dated 18th June.[124]MR JUSTICE WALL: Then it is 18th June. The 18th June.[125]MRS SCOTT-BELL: Vaguely near when they were launched.[126]MR JUSTICE WALL: If it is the 18th June, so be it. Thank you very much for your help.