“A mass of evidence was filed … I do not propose even to summarise let alone to attempt to analyse this vast mass of material. Suffice it to say that it examines, from a variety of viewpoints and often in enormous detail, the history of this sad dispute, the problems faced by A and B, the suggested means by which those problems can best be addressed, in particular the problems surrounding the manual handling issue, the appropriateness or otherwise of ESCC’s care plans and the legality or otherwise of ESCC’s manual handling policies.”
“In the present case there is a truly astonishing mass of material filed with the court which charts and records in enormous detail – in relentless and remorseless detail – the problems faced by A and B and their carers X and Y, the details of their daily routines, the precise details of virtually every ‘lift’ that occurs during the day, and the various views which have been expressed not merely by X and Y but also by a wide range of other people as to how each of these ‘lifts’ can and should appropriately be achieved. I do not propose even to summarise let alone to analyse this almost unmanageable mass of material.”
“I have commented on the vast and almost unmanageable mass of the evidence and other materials I have been asked to consider. But this is merely a manifestation of a deeper and more serious problem … Put plainly, I felt at times that singularly little thought had been given to identifying precisely what the task was upon which I was supposed to be engaged.”
“ … the manual handling issue comes before the court in the final analysis, and notwithstanding the important human rights arguments, as a matter raising issues of public law. Now this has two important corollaries: first, that the primary decision maker is ESCC and not the court; and, secondly, that the court’s function, notwithstanding the important human rights aspects of the case, is essentially one of review – review of ESCC’s decision, whatever it may – rather than one of primary judicial decision making … It is not the task of the court to make and draw up the necessary assessments. That is a task for ESCC … At times during the argument I almost felt as if I was being asked to write, in the guise of giving a judgment, a textbook or manual on the law and practice of manual handling. This is not the function of the court … ”
“The result, if I may adapt a military metaphor, was ‘litigation creep’, the forensic equivalent of the ‘mission creep’ that is the bane of military planners.”
“Before me the dispute was not as to the lawfulness of ESCC’s general policy as enshrined in the Code: rather the dispute was as to the lawfulness of the application of that policy to the specific circumstances of A and B’s care and, related to that, the lawfulness of the draft protocols prepared by Mrs Bosley.”
“In this situation it seems to me that there is not much point in my subjecting what are after all only draft, incomplete and, as Mrs Bosley puts it, dynamic protocols to intensive scrutiny. Better, at this stage, that I address the matters of general principle identified in counsel’s submissions and give ESCC and Mrs Bosley such further assistance as circumstances allow so that Mrs Bosley can finish the task on which she is currently engaged. It is when that task is complete that the claimants can, if they wish, challenge the legality of what Mrs Bosley has done or of what, in the light of Mrs Bosley’s work, is proposed to be done by ESCC. This approach may seem unhelpful but it will, in the long run, enable the court to focus, if the need arises, on what will by then have emerged as the real issues. It also reflects the vitally important fact, which many of the submissions I have listened to have tended to overlook or to downplay, that in the final analysis it is for ESCC, assisted by Mrs Bosley, to make the appropriate assessments and produce the appropriate protocols. It is not a matter for the court”
“In the present case, as I have already remarked, ESCC has not in fact completed the process of making and drawing up the necessary assessments. In this situation the present application is, in a very real sense, premature. It is not for me to tell ESCC how to go about a task which Parliament has said is a matter for it and not for me. I have gone as far as I sensibly and properly can at this stage in attempting to set out the relevant legal principles by which ESCC must be guided as it goes about its task.”
“The proper way forward – and this is provided for in the order that I made on25 November 2002 – is for ESCC to complete, with Mrs Bosley’s assistance, and applying the principles which I have sought to explain, the task upon which it is currently engaged. If the completed assessments and protocols which emerge from that process are not acceptable, either to A and B or to X and Y, then their remedy is a challenge by way of judicial review. I have provided for that in paragraphs 14 and 15 of my order.”
“there is no need for me to consider, and in all the circumstances I think it would be unhelpful if I were to express any considered views on, a number of matters that were canvassed, on occasions at some length, during the course of argument. Accordingly I propose to say nothing about where the responsibility may lie for the present unhappy state of affairs, about whether or not the earlier versions of ESCC’s Code were lawful or unlawful, about the allegations that ESCC failed to comply in certain respects both with the consent order of21 July 2000 and with Wilson J’s order of14 June 2002 , or about the meaning and effect of Wilson J’s order.”
“All I should say is this. It would be a travesty to suggest that the entire responsibility for this very saddening state of affairs lies at ESCC’s door. I suspect that in certain respects their handling of an almost uniquely difficult case can be criticised, but for much of the time ESCC and its officers seem to me to have gone out of their way to try and help this family. Legitimate differences of opinion on matters as complex as those I have had to consider should not be treated as anything more sinister.”
“(i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs. (ii) It will ordinarily be irrelevant that the Claimant is legally aided. (iii) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost. (iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. (v) In the absence of a good reason to make any other order the fall back is to make no order as to costs. (vi) The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.”
“I regard it as undesirable that a substantial bill of “legal costs” should be incurred by a process of monitoring and regulating the performance of the public authority. In the situation which presented itself once LBH had been ordered to provide services and accommodation, it being the authority entrusted with the obligations and the resources, should have been able to decide upon a care plan and provide accommodation without the intervention of lawyers. The occasions when it will be appropriate for costly participation by a user’s solicitor in the process of preparing a plan and the provision of accommodation by a local authority will be rare. The starting point must be that it is for the authority to act and produce its proposals.”