Martiner v Director of Public Prosecutions [2004] EWHC 2484 (Admin)

Case No CO/2635/2004[2004] EWHC 2484 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 11 October 2004
Strand
London WC2
B E F O R E:
MR JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OF PASCAL MARTINERClaimant-v-
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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)
MR N CHAPMAN (instructed by Lewis Nedas) appeared for CLAIMANTMR J BENSON (instructed by CPS) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE DAVIS: This is an appeal by the appellant, Pascal Martiner, against a decision by Anthony Evans District Judge (Magistrates' Court), delivered at the Horseferry Road Magistrates' Courts on 2 September 2003, whereby the district judge convicted the appellant of a charge of having been required to provide a specimen of blood for analysis and failing without reasonable excuse to do so, contrary to section 7(6) of the Road Traffic Act 1988.[2]The background facts are summarised in the case stated as follows. The charge against the appellant was preferred on 31 March 2003, that he on 31 March 2003 at Belgravia Police Station, having been required to provide a specimen of blood for analysis pursuant to section 7 of the Road Traffic Act 1988 in the course of an investigation into whether he had committed an offence under 3A, 4 or 5 of the said Act by driving a motor vehicle, failed without reasonable excuse to do so, contrary to section 7(6) of the Road Traffic Act and Schedule 2 of the Road Traffic Offenders Act 1988.[3]The following facts were found as set out in the case stated. On the day in question, Mr Martiner had been driving his car along Millbank with friends as passengers. He was stopped by police officers and admitted to having drunk two pints. The roadside breath test procedure was carried out, which proved to be positive. In consequence, the appellant was arrested and taken to Belgravia Police Station.[4]He there provided two specimens of breath on the evidential breath machine at the police station. However, the sergeant administering the test was not satisfied that the machine was working properly. The sergeant therefore required the appellant to provide an alternative specimen. He carried out the procedure and explained that he required a specimen of blood or urine and that the decision was his (meaning the police sergeant). Having been correctly required to provide a specimen of blood and having had explained to him the consequences of failure to do so, the appellant refused to comply. A second request was made and again refused. The appellant was asked whether there was any medical reason for his refusal. His reply was, "It is my human right to say no". He was then charged with the offence.[5]Based on evidence given by the appellant as to earlier incidents in his life and medical evidence from Dr Muta Alamin, a consultant psychiatrist, the district judge was satisfied that the appellant suffered from a moderate needle phobia and Anxious Avoidant Personality Disorder. The appellant did not disclose his medical condition to the custody sergeant, although he was aware of his needle phobia.[6]Those then were the findings of the district judge. It was noted that the appellant contended that, because of that condition, he had a reasonable excuse for failing to provide a specimen of blood.[7]The district judge then went on to refer to a number of authorities, albeit it seems that none had been cited to him by either party. Those authorities, as referred to by the district judge, included Teape v Godfrey [1986] RTR 213, DPP v Furby [2000] RTR 181 and DPP v Lonsdale [2001] RTR 444. The district judge went on to express his conclusion in this way:
"I concluded in this case that the defendant had not done his best to provide a specimen and failed, so that he could not rely on a 'reasonable excuse', particularly as he had not informed the custody sergeant of his needle phobia. If he had done so, the officer could have sought medical advice and, if appropriate, required a specimen of urine. There was no causative link between the appellant's condition and his failure to provide the specimen. Although the line of authorities on the topic refer to failures to provide specimens of breath, I concluded that they could apply equally in cases involving failures to provide specimens of blood. To conclude otherwise would be to overturn the whole purpose of the legislation."
The district judge accordingly convicted the defendant and imposed a fine of £150, together with prosecution costs of £100 and disqualified him from driving for 12 months.[8]The questions posed for the court were two. First:
"When a motorist has been lawfully required to provide a specimen of blood for analysis and deliberately fails to provide such a specimen, whether he has a reasonable excuse for so failing when he suffers from a medical condition which might have prevented him from doing so but which he did not mention to the police constable requiring the specimen."
Second:
"Was I right to convict the appellant?"
[9]Pausing there, one or two matters are not set out as findings in the case stated. First, there is no finding as to what it was that prompted the appellant to give the reply, "It is my human right to say no" when asked for a second time to provide a specimen of blood. It therefore is not known whether that answer was borne out of flippant insolence or out of a desire to stall or out of a sincere belief in the truth of the statement he was enunciating. However, I should record that Mr Chapman, counsel appearing on his behalf this morning, wisely has not sought to pursue any human rights argument today.[10]Second, I would record that the district judge gave his finding that he was satisfied that the appellant suffered from a moderate needle phobia and Anxious Avoidant Personality Disorder. The district judge did not, however, in terms go on to make an express finding that such phobia and disorder caused the appellant (in the sense that it gave him a potential reasonable excuse) not to comply with the request to give a blood specimen. That perhaps is to be noted when one also notices the use of the word "might" in the first question posed to this court. However, the argument has proceeded before me, at all events so far as Mr Chapman is concerned, on the footing that the structure of the case stated indicates that the district judge must implicitly have made such a finding, and the district judge's conclusion that there was no causative link between the appellant's condition and his failure to provide a specimen was a conclusion made having regard to the legal approach adopted by the district judge. I am content for present purposes to proceed on that footing.[11]The arguments before me, in essence, come to this. On behalf of the appellant Mr Chapman first submits that there is no requirement on a suspect in any case of this kind to inform the constable of any medical reason for an inability to provide a specimen. He submits that the weight of the authorities accords with such a proposition. Secondly, and alternatively, he submits that, to the extent that there is a requirement to inform a constable of a medical reason for an inability to provide a sample, that only applies in a case of breath specimens. Thirdly, he submits that a suspect cannot be expected to inform a constable of medical reasons if he is unable to because he is unaware of the condition, or for any other good reason. He states that evidence of Anxious Avoidant Personality Disorder, which prevented the appellant from informing the constable of the needle phobia, was not challenged by the Crown before the district judge.[12]As to that third point, I discount it altogether for the purposes of this appeal: because the district judge expressly found that the appellant did not disclose his medical condition to the custody sergeant, although he was aware of his needle phobia; and the question posed for the court is posed on the basis that there was a deliberate failure to provide the blood specimen which had been requested.[13]On behalf of the respondent, Mr Benson submits that the district judge reached the right conclusion and for the right reasons. He submits, moreover, to the extent that Mr Chapman argues that a different result can be reached depending upon whether the sample sought was one of breath as opposed to one of blood or urine, that there are no good policy considerations to indicate that there should be such a divergence. On the contrary, he submits, every consideration of policy and good sense indicates that the same result should be reached. He further submits that that accords with the provisions of section 7 itself.[14]I was told by counsel that this particular point, in the context of a request for a sample of blood or urine, has not risen for decision before. I was, however, referred to a number of authorities by Mr Chapman and Mr Benson. For his part, Mr Chapman referred me to the decision of the Court of Appeal in the case of R v Lennard [1973] RTR 252, a decision on the relevant provision of the Road Safety Act 1967. That, as is evident from the judgment delivered by Lawton LJ, was a case on its own facts. In the course of his judgment, at page 255, however,

Lord Justice Lawton said this:

"A state of affairs which does not affect ability to take a breath test or supply a specimen does not seem, on the authorities, to amount to a reasonable excuse."
A little later on, he says this:
"In our judgment no excuse can be adjudged a reasonable one unless the person from whom the specimen is required is physical or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health."
[15]The position in the present case did not fall for decision in the case of Lennard, nor does it follow from the last cited passage from Lawton LJ's judgment that, where a person from whom a specimen is required is physically or mentally unable to provide it, or where the provisions of the specimen would entail a substantial risk to his health, then necessarily and always there will be a reasonable excuse.[16]Mr Chapman also cited to me the decision of the Court of Appeal in the case of R v Harding [1974] RTR 325 on the applicable provision under the Road Traffic Act 1972. In that case what was being asserted was that there was a reasonable excuse in failing to provide a specimen, in that the defendant really feared insertion of needles: that is to say, in shorthand, he had something of a phobia about needles. That case does not really assist much in the present context. Mr Benson does not dispute that a needle phobia may, in appropriate circumstances, provide a reasonable excuse; and as he point outs out, the citation of the facts at page 327 of the judgment shows that, at the time the specimen was sought, the defendant, Mr Harding, told the police about his fear of needles.[17]The next case which Mr Chapman relied upon was the case of DPP v Crofton [1994] RTR 279. That, again, was a case on its own special facts, where a failure to provide a breath sample was sought to be explained, by way of reasonable excuse, by an alleged depressive state. It seems to me that there is little on the facts of that case to cast much light on the issue now before me: although it may be noted that, in that case, one of the findings of fact was that the defendant had tried his best to provide the relevant specimen, by trying three or four times to blow into the machine.[18]Mr Chapman, in the course of his review of the authorities, then went on to refer me to the decision in the case of Alcock v Read 1980 RTR 71. That was a case where the motorist was said to be mentally incapable of providing a blood specimen through invincible repugnance to the use of a needle. The justices concluded that he had, on the evidence adduced before them, a reasonable excuse. The headnote reveals that, after giving one specimen, the defendant was willing but unable physically to provide a second specimen of urine, pursuant to the relevant provisions of the Road Traffic Act 1972. He was requested to provide a specimen of blood, but was mentally incapable of complying with that request (although he had initially agreed to do so) in that he had twice fainted in the past when asked to give such a specimen and had a terror of blood. It was found by the justices that the defendant had been willing but unable physically to provide the second specimen of urine, and that the excuse raised by him was reasonable in all the circumstances.[19]Again, that case does not really cast much light on the case before me. Indeed, it may be noted that, in that particular case, as the recital of facts on page 73 make clear, the defendant there genuinely attempted to provide the relevant specimen, and also made it clear at the time to the police that he was saying that he had a fear of giving blood.[20]The final case particularly relied upon by Mr Chapman was the case of DPP v Falzarano [2001] RTR 217. That was, to say the least, an unusual case on the facts; and the defendant there might perhaps count herself as fortunate to have been acquitted by the justices. In that particular case, it may be noted, the evidence was that the defendant had sought to comply with the police requests, although she never told the police that she was on medication or suffering from any disability or other reason as to why she could not provide the requested specimen sought. It may also be noted that, as the findings of fact record, she had in fact offered to give a sample of blood, but the police had declined. Again, in that case, which was very much a case on its own facts and where it was found as a fact also that the defendant had done her best to provide the breath specimen, the point now in issue before me was not specifically raised. I do not think it affords any real assistance to Mr Chapman.[21]For his part, Mr Benson submitted, and I think rightly submitted, that all the cases relied upon by Mr Chapman were different from the present, and, moreover, were decisions on their own facts. He himself referred me to a number of authorities. One of those authorities was the case of Teape v Godfrey, a decision of the Divisional Court comprising Forbes J and Kennedy J (as he then was) [1986] RTR 213. In that particular case, the defendant was proffering as a reasonable excuse, for the purposes of section 7 of the Road Traffic Act 1972, his assertion that he suffered from an asthmatic condition, causing him not to be capable of supplying the requested specimen of breath. In the course of his judgment, at page 220, Kennedy J said this:
"The difficulty which the defendant faces in the present case is that on the findings of the justices as I read them, he on each occasion deliberately failed to provide the specimen. He did not provide such breath as he could, he simply avoided providing the breath and did so deliberately. He blew around the tube rather than into it. In those circumstances, it seems to me that, in the context of this particular case, no question of reasonable excuse in fact arose ..."
I need not read any more from that judgment. I simply note that, on the findings of the district judge here, and as Mr Benson observed, this appellant seems to have made no attempt to provide a blood sample as requested.[22]Forbes J, in the case of Teape v Godfrey, agreed with Kennedy J. But he went on to make comments concerning drivers who are asked for specimens in circumstances such as the present. He referred to previous authority and then said this (at page 221):
"This, to my mind, means that there is a duty on the motorist in the circumstances outlined to provide a specimen. If a man suffers from a medical condition which either does, or may well, prevent him from giving a specimen of breath sufficient to enable the analysis to be carried out - that is what is required by section 12(3) of the Act of 1972 as amended - he still remains to my mind under a duty to provide a specimen. In such a case, specimens of blood or urine are the alternatives ... If a man knows that he suffers from a medical condition which prevents him giving sufficient breath, his duty to provide a specimen must include, in those circumstances, a duty to inform the constable making the requirement of that medical condition. He having done so, the constable may of course require an alternative specimen or he may insist on a breath specimen. If he does the latter, he runs the risk that any consequent prosecution may well fail, if the medical condition can be justified by evidence on the grounds that the defendant has a reasonable excuse for failing to provide a specimen. Of course, if the man does not have any knowledge of his medical condition or its effect on his providing a breath specimen, he can hardly be under such a duty to inform the constable. But I feel quite satisfied that if he does know, then his duty to provide a specimen includes a duty to inform the constable of his medical condition so that a specimen can be provided in those circumstances. As Kennedy J has said, the question of reasonable excuse does not really arise in this case, but as this question of the extent of the duty was much canvassed during the argument, I thought it only right that I should add that footnote to what Kennedy J has said."
That last comment makes it clear that the previous observations of Forbes J were obiter dicta. Nevertheless they are clearly relevant to the present case: unless there be, as Mr Chapman submits, a plain and clear distinction to be drawn between cases involving a failure to give breath, which is the position in Teape v Godfrey, and a failure to give a sample of blood or urine, which is the position in the present case.[23]Yet further, in the extensive review of the authorities to which counsel directed me, I was taken to the decision in the case of DPP v Furby [2000] RTR 181, a decision of the Divisional Court comprising Kennedy LJ and Butterfield J. That again was a case where there had been a failure to provide a specimen of breath, the applicable section being section 7 of the Road Traffic Act 1988. It is, I think, important to observe that at page 185, Kennedy LJ, in delivering the first judgment, expressly stated that section 7(6) of the 1988 Act should be read together with section 7(3)(a), and that the linkage between section 7(3)(a) and section 7(6) was thus, as it seemed to him, obvious. At page 186 Kennedy LJ went on to say this:
"The way the statute is worded using the present tense is such as to make it clear that there must be a direct relationship between the excuse relied upon and the failure to provide a sample. So that a man whose lung capacity is impaired to such an extent that he is incapable of providing a specimen, but who is unaware of that impairment, cannot rely upon it as excuse unless he makes a genuine attempt to provide the specimen. If he knows of his incapacity he may prefer to explain why it is not even worth making the attempt. If he is unaware of his incapacity and has made no genuine attempt, he cannot at the time of his failure have had any reasonable excuse for it. As it seems to me, the fact that he subsequently discovered that had he made a genuine attempt he would not have been able to provide a specimen is, for the purposes of the statute, irrelevant. Mr McIlroy sought to persuade us that provided -- viewed objectively -- the medical condition existed which, had he made the attempt to provide the specimen, would have prevented him from providing it then, at the time when he was making the attempt, he had a reasonable excuse for not providing it. For my part, I simply cannot accept that. In the course of argument, I put to Mr McIlroy the example of my being required to attend at a meeting some 300 or 400 yards away. I choose not to attend and make no effort to go. The fact that had I made the effort I would, on the way, have suffered a fatal heart attack cannot, as it seems to me, constitute a reasonable excuse for my failure to attend. It is simply an extraneous element. It is not something which, at the material time, played a part in the failure on my part to stir myself to go at all. That approach to the statute seems to me to be fortified by the provisions of section 7(3)(a) to which I have already referred. As Mr Clarke, on behalf of the appellant pointed out, if a person in the position of this respondent makes an attempt to provide a specimen and does what he can, or if he explains that because of his condition he is unable to provide any specimen, then the officer who is conducting the inquiry is put in the position of being able to make a requirement that he should provide a specimen of blood or urine. If the suspect does not behave in the way that I have envisaged then, as it seems to me, the provisions of section 7(3)(a) are nullified."
[24]Having so stated, Kennedy LJ went on to refer to the decision of Curtis J, giving the judgment in the case of DPP v Crofton, and indicated that there must be just such a causative link as Curtis J had there envisaged, that being one of the three important matters that justices had to consider in making their findings. In the present case, of course, the district judge here made a finding as to a lack of causative link, which was fatal to this appellant. Butterfield J agreed with the decision of Kennedy LJ.[25]Finally, I was referred to the decision of the Divisional Court in the case of DPP v Lonsdale [2001] RTR 444. That also was a case under section 7 of the Road Traffic Act 1988, where the defendant there claimed bronchitis as a reasonable excuse for not providing a further specimen of breath. In the passage of his judgment starting at page 449 and onwards, Brooke LJ endorsed and applied the decisions in Teape v Godfrey and DPP v Furby. As he said:
"These cases make it clear that if a police officer requires the motorist to take a breath test in the police station and the motorist makes no effort at all to blow into the bag, then he cannot, subsequently, contend that he has a reasonable excuse for failing to do so."
It is also to be observed that at page 450 the court expressly noted that, on the facts as found, the police sergeant in that case did not know that the defendant was suffering from bronchitis and did not know that, at the time he made the requirement for the specimen, the defendant had a prescription in his pocket.[26]A little later on, Brooke LJ said this:
"It is, in any event, Sergeant McNeil on whom the focus of the inquiry must be concentrated. If he did not know of the bronchitis, and the defendant did not tell him about the bronchitis, then no objective observer could say that he had reasonable cause to observe that for medical reasons a specimen of breath should not be required."
It is true that observation is made in the context of section 7(3)(a); but as Kennedy LJ had previously said in the case of Furby, there is a clear link between section 7(3)(a) and section 7(6).[27]I should of course refer to the actual provisions of section 7 of the 1988 Act. They are in the following terms:
"7(1) In the course of an investigation into whether a person has committed an offence under section 4 or 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him— (a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or (b) to provide a specimen of blood or urine for a laboratory test. (2) A requirement under this section to provide specimens of breath can only be made at a police station. (3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless— (a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or (b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or (c) the suspected offence is one under section 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug; but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath. (4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine. (5) A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine. (6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence. (7) A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."
I add that section 7(4) has recently been amended, but it is agreed that, given the timing of this offence, the previous version of that section applies.[28]This is a lengthy list of authorities to have to cite in the context such as the present; and I only cite these authorities out of deference to counsel, who assert that this, as I have said, is a new point so far as they are aware as a matter of legal precedent. I am bound to say that, if this is indeed a new point, then my own opinion is that, very probably, this point has not previously been considered worthy of argument in the light of the previous authorities such as Teape v Godfrey and DPP v Furby. But be that as it may, this decision of mine will create a precedent, if precedent is thought to be considered necessary.[29]I have reached the clear view that the district judge came to the right conclusion, and that he came to the right conclusion essentially for the right reasons. Section 7(6) applies to the entirety of section 7 and relates to the failure to provide a specimen as required under that section: that is to say specimens of breath or blood samples or urine samples. I can see absolutely no consideration of policy or sense which might give rise to a different argument depending or not upon whether the specimen sought to be provided, but refused to be or failed to be provided, by the defendant should depend upon whether or not the specimen in question is breath on the one hand, or blood or urine on the other hand. It seems to me that the reasoning most clearly enunciated by Forbes J in Teape v Godfrey and by Kennedy LJ in DPP v Furby, and further confirmed in DPP v Lonsdale, likewise should apply and does apply in the context of a failure to provide a specimen of blood or urine for the purposes of section 7 of the Road Traffic Act 1988.[30]Mr Chapman sought to draw a distinction in this way. He accepted that, where a person failed to provide a specimen of breath but failed to advance a reason for doing so, notwithstanding that he knew a reason for not doing so, then that would effectively have diverted the police sergeant in question away from seeking a specimen of blood or urine, in accordance with section 7(3)(a). The position, he submits, is to be contrasted with the entitlement of the police sergeant to decide, in his discretion, whether to require a specimen of urine where a person refuses or fails for whatever reason to provide a specimen of blood and a specimen of blood where a person refuses or fails to provide a specimen of urine.[31]But that seems to me to be an extremely artificial distinction for present purposes, and moreover, is one that does not sit well with the provisions of subsection (4): which makes it clear that it is the choice of the police sergeant in question as to whether what is to be required is either a specimen of blood or a specimen of urine. That does not suggest that the police sergeant is required to offer both options to a suspect. Mr Chapman's argument would also seem to require that when the appellant deliberately (as here was found) failed to tell the police sergeant of his condition, albeit that the appellant knew of it, the police sergeant was then in effect required to consider going on solemnly to ask the appellant to provide an alternative specimen of urine: even though, no doubt, the police sergeant's mindset would doubtless by then have been that, had such a request been made, the answer again would have been an invocation of human rights or some such gibberish of that kind.[32]In my view, therefore, if no attempt is made to provide the specimen requested and no reasonable excuse is advanced, particularly where the defendant knows of such excuse but deliberately chooses not to avail himself of it, then the position is exactly as stated by the district judge. The position is no different with regard to requests for specimens of blood (or urine) to that applicable (as established by authority) in the case of requests for specimens of breath. In my view, were the position otherwise, that would be an affront to commonsense and would not advance the evident policy behind the Act. There can, after all, be no hardship on a defendant in a case such as this, if he knows of a reason as to why he cannot even attempt to supply a blood specimen, from him frankly saying so. The advantage, of course, in him doing so, and the reason why he should do so, is that it then enables the police officer in question to consider taking alternative steps, such as seeking a medical opinion or considering requiring a urine sample or something like that. It does not seem to me to be right that, in effect, defendants in this position can subsequently seek to take advantage of their own deliberate failure to advance an excuse known to them for not attempting to provide the requested specimen.[33]In those circumstances, it seems to me that this appeal must be dismissed.[34]In answer to the first question, which is, "When a motorist has been lawfully required to provide a specimen of blood for analysis and deliberately fails to provide such a specimen, whether he has a reasonable excuse for so failing when he suffers from a medical condition which might have prevented him from doing so but which he did not mention to the police constable requiring the specimen", the answer to that question is: no. In answer to the second question, "Was I right to convict the appellant?", the answer to that question is: yes.[35]MR BENSON: My Lord, I am instructed to make a costs application in this matter. My Lord, I make that application in the sum of £800.[36]MR CHAPMAN: My Lord, could I very briefly take instructions?

MR JUSTICE DAVIS: Yes.

[38]MR BENSON: My Lord, I think it is only fair that I point out that I make that application as a sum in the round. I have attempted both on Friday and this morning to get in contact with the CPS lawyer who has custody of the case and I cannot get hold of him to obtain specific --

MR JUSTICE DAVIS: Do you have any schedule or statement of costs?

[40]MR BENSON: My Lord, I do not.

MR JUSTICE DAVIS: What do you say about £800? Do you oppose an order for costs in principle?

[42]MR CHAPMAN: No opposition to that. I simply tell you that Mr Martiner is of relatively limited means. He has £1,000 in savings, but only earns £300 a week.

MR JUSTICE DAVIS: What do you say about the quantum of £800?

[44]MR CHAPMAN: I do not know where it comes from. I cannot dispute the figure, but I cannot agree with it either without seeing where it comes from.

MR JUSTICE DAVIS: The trouble is I have no material, Mr Benson.

[46]MR BENSON: I appreciate that.[47]MR JUSTICE DAVIS: What I will order is that the appellant pay the respondent's costs of this appeal. It will have to be subject to a detailed assessment on the standard basis, though I very much hope they can be agreed. What do you say about time to pay?[48]MR CHAPMAN: It is difficult to say, but if it is around £800 then I imagine Mr Martiner can pay quickly given his savings.

MR JUSTICE DAVIS: Do we know how long the detailed assessment will take?

[50]MR BENSON: My Lord, I should not think it would be too long -- within a week or two.[51]MR JUSTICE DAVIS: I think I will make an order that he pay the costs, to be subject to a detailed assessment on the standard basis. If it has to go to a costs judge or a Crown Court associate, then the appropriate order can then be made. I very much hope you can agree the quantum on costs. I would simply add this: if the quantum of costs are hereafter agreed, such sum as so agreed is to be paid within three months. Is there anything else?[52]MR BENSON: No, my Lord.[53]MR CHAPMAN: No, my Lord.

Cited in 1 later judgment