DB, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 59 (Admin)

Case No CO/3149/2004[2005] EWHC 59 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 18 January 2005
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF D BClaimant-v-
Between
IMMIGRATION APPEAL TRIBUNALDefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTInterested 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 G WARD (instructed by Duncan Lewis & Co) appeared for CLAIMANTMISS S BROADFOOT (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MITTING: The claimant is a single man and a citizen of Uganda. He arrived in the United Kingdom on or about 20th November 2000 and claimed asylum and sought leave to remain on human rights grounds. The Secretary of State rejected both applications by a letter dated 23rd January 2001.[2]The claimant appealed to the Adjudicator, who rejected his appeal under both heads by a decision promulgated on 9th April 2003. By a notice, dated 3rd November 2003, the claimant sought permission to appeal to the Immigration Appeal Tribunal out of time on human rights grounds only. The IAT refused to extend the time for the reasons notified on 20th April 2004.[3]By a claim made in time, the claimant applied for permission to seek judicial review of the Immigration Appeal Tribunal's decision and was granted permission on the papers to do so.[4]The claim has been heard by me today. The facts are not significantly in dispute. The claimant suffers from HIV and leprosy. He was admitted soon after his arrival in the United Kingdom to North Middlesex Hospital under the care of Dr Wood, a consultant physician. His condition is described in a letter and report from Dr Wood, both of which were in evidence before the Adjudicator, his opinion is fully set out in his report dated 25th March 2003 and is as follows:
"Mr B presented to our hospital through casualty in December 2000. He was extremely unwell at presentation and would have died without urgent treatment that he received then. During his admission he was found to have pulmonary tuberculosis and at our recommendation he had a HIV test that also proved positive. "
When Mr B first presented he had AIDS, in addition to the tuberculosis infection he also had a low CD4 count of 10 and his viral load was 120,000. Mr B made a good initial recovery due to his therapy soon after. He was having a good response but then developed further illness in 2001 and was found to be diagnosed with mycobacterium leprae, known as leprosy, and this was affecting his left face and eye. "He was referred to the Hospital for Tropical Diseases at University College London and has been receiving dual management from our own unit on T1 ward in the North Middlesex Hospital for his HIV infection and has been receiving treatment for his leprosy at the Hospital for Tropical Diseases. Both conditions are still requiring active therapy and without appropriate treatment and monitoring they would both relapse rapidly. "Mr B's HIV viral load is now less than 50 but his CD4 count is only 80 so he is immunocompromised. However, his prognosis and current situation is likely to be in the order of 5 to 10 years or quite possibly much more. Were he forced to stop his therapy, his condition would deteriorate rapidly and his prognosis would be in the order of 6 to 12 months. Mr B is currently requiring complex therapy for his HIV infection and also for his leprosy, including the immunosupressant drug azathioprine and rifabutin."[5]Dr Wood went on then to describe the detail of the medication:
"Were he denied leave to remain in the UK and sent back to Uganda, he would not be able to continue his therapies and we would expect both of his conditions to deteriorate rapidly. At least two of his essential drugs (azathioprine and rifabutin) [a drug for the treatment of leprosy] are not available in Uganda. "
Were he forced to leave the UK and return to Uganda, he would therefore have to stop his therapies. In this situation his immune system would deteriorate rapidly. His leprosy would worsen and it is likely that his tuberculosis would return. His prognosis would then be reduced enormously to the order of 6 to 12 months. During this time his condition would worsen, he would deteriorate with increasing weight loss, weakness, disability that would ultimately lead to his death. If Mr B is allowed to remain in the UK then he would be able to continue treatment and the unnecessary suffering and death described above would not occur."[6]In paragraph 26 of his determination and reasons, the Adjudicator referred to "objective" evidence of the treatment available for HIV AIDS in Uganda:
"The National Strategic Framework for HIV/AIDS Activities in Uganda for 2001-2005/6, the executive summary, shows that the Government is addressing the problem of AIDS seriously and that there is available treatment for AIDS sufferers in Uganda. Turning to CIPU at paragraph 5.66 onwards regarding medical services, I note from paragraph 5.67 that according to a report issued in July 2002 by the Joint United Nations Programme on HIV/AIDS (UNAIDS) Uganda's HIV infection rate has declined from the seventeenth high in the world to the twentieth highest. In December 2000, Ugandan radio reported that HIV and AIDS in urban areas had dropped by 30 per cent. Also in December 2000 the Bill Gates Foundation donated US$15.3 million to Uganda for the implementation of national population programmes focusing on adolescents and HIV/AIDS. "
In December 2000, the Government of Uganda signed an agreement with two US based drugs manufacturers to reduce the prices of two new anti-AIDS drugs, crixivan and stokrin, by 70 and 50 per cent respectively. A report in May 2001 stated that the Government of the United States of America was to introduce two new development programmes and inject a total of 50 million to help fight the HIV/AIDS pandemic in Uganda. I note from paragraph 5.69 that in an effort to control the HIV/AIDS pandemic, the Government promised soon to start distributing free condoms in villages countrywide according to a UN integrated regional information network report issued on 17th January 2002. Uganda has been cited as the success in sub-Saharan Africa in an effort to reduce HIV prevalence levels, according to the Joint United Nations Programme on HIV/AIDS, UNAIDS."[7]His findings are in paragraphs 32 and 34:
"32. The appellant in this case claims that he suffers from HIV/AIDS. He claims that he will not receive the type of medical treatment that he can expect to receive from the United Kingdom. There is clear evidence in support of his claim that he does suffer from HIV/AIDS, including a report recently enclosed in a letter from North Middlesex University Hospital dated 25th March 2003 from Dr Chris Wood MRCP. "34. The objective material on Uganda clearly shows that Uganda is addressing the problem of AIDS. It also shows that there is available in Uganda, at considerably reduced prices, medication that would be available in this country. AIDS is treatable in Uganda as in many other countries albeit that it might not have the same standard of treatment as is available in the United Kingdom. "
I have considered the submissions made on behalf of the appellant, bearing in mind the decision of the High Court in the case of Kasasa. Clearly there is every effort by the Ugandan authorities to deal with the problems of AIDS and they are in receipt of considerable international funding to assist in that region. The objective material also shows that the appellant in this case is far from unique in his case. Very sadly, his position is not unique and there is nothing exceptional in this case. Clearly, there is availability of facilities in Uganda to deal with his condition. "In my opinion, his return to Uganda at the present time would not amount to inhuman or degrading treatment or reach the high threshold contemplated by Article 3 in order to breach the European Convention. Nor can it be said in present circumstances that his return to Uganda would be a breach of his moral or physical integrity since medical facilities there are available."[8]Because the Adjudicator's decision was promulgated before 9th June 2003, Section 101 of the Nationality, Immigration and Asylum Act 2002 did not apply to any appeal. He was entitled to appeal on both factual and legal grounds and he sought permission to do so.[9]The grounds of appeal referred to the report of Dr Wood already set out and contended:
"3. Despite this evidence, the Adjudicator held at paragraph 34 of his determination that Mr B's 'position is not unique and there is nothing exceptional in his case. Clearly there is availability of facilities in Uganda to deal with his condition.' "4. The finding of the Adjudicator was flawed in that the clear evidence was that two of Mr B's essential drugs are not available in Uganda. Mr B's combination of conditions is very unusual (see letter from Dr Woods dated 11th August 2003) and if he were to be returned to Uganda the certainty is that he would not be able to receive any effective treatment for his conditions and his life expectancy would accordingly be reduced to the 6-12 months set out in Dr Woods' evidence to the Adjudicator. "6. The clear evidence in this case is that: "(i) Mr B has a very unusual combination of AIDS and leprosy; "(ii) The only effective treatment for this combination of illnesses is a specific combination of drug therapies; "(iii) At least two of the essential components of the drug therapy are not available in Uganda. "(iv) If any part of Mr B's treatment is withdrawn, he will rapidly relapse and his prognosis will be approximately 6-12 months. "7. The Adjudicator's finding that there is treatment available for Mr B's condition in Uganda is not therefore supported by the objective evidence when the facts of this case are properly analysed. The Adjudicator should have held that Mr B's inability to access treatment if returned to Uganda would lead to breach of his rights under Article 3 ECHR and allowed this appeal on human rights grounds."
[10]As to delay, the grounds said simply:
"8. It is acknowledged that this application is made significantly outside the time limit for applying for permission to appeal. It is not clear why Mr B's previous solicitors did not advise him to appeal within time. Mr B's current solicitors were instructed only very shortly before removal directions were set for Mr B and have until now been concentrating on the ongoing judicial review proceedings to quash those directions."
[11]The last sentence is a reference to an application for permission to seek judicial review, which was refused on paper on the grounds that an application for permission to appeal out of time to the IAT was the appropriate and available remedy.[12]The relevant rules governing appeals to the IAT and applications to extend time are set out in paragraphs 16 and 18 of the Immigration and Asylum Procedure Rules 2003, which came into force on 1st April 2003.[13]The relevant part of rule 16 provides:
"1. An application notice for permission to appeal must be filed in accordance with rule 15.2 or served in accordance with rule 15.2(b) ... "(b) In any other case where the appellant is in the United Kingdom not later than ten days after he is served with the Adjudicator's determination ... "2. The tribunal may extend the time limits in paragraph 1 if it is satisfied that by reason of special circumstances it would be unjust not to do so."
[14]Rule 18.4 provides:
"The tribunal may grant permission to appeal only if it is satisfied that (a) the appeal would have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard."
[15]On 16th October 2003, the Court of Appeal gave judgment in N v Secretary of State for the Home Department [2003] EWCA Civ 1369 2004, 1 WLR 1182, to which I will return. Mr Jordan, Vice President, in refusing to extend time gave as his reasons:
"2. The claimant sought leave to appeal on 3 November 2003 and was substantially out of time over five months. "3. By a letter dated 6 November 2003, Messrs Duncan Lewis & Co Solicitors told the tribunal that, 'It is not clear as to why our client's previous solicitors did not lodge an appeal to the tribunal.' "4. The tribunal may extend the time limits in which to appeal if it is satisfied that by reason of special circumstances it would be unjust not to do so. "5. There is nothing in the letter of 6 November 2003 insofar as it relates to any reason for this claim to amount to special circumstances. "6. I have, however, considered the evidence in the round. Like millions of other people, the claimant suffers from AIDS. He also serves from leprosy and tuberculosis. I have read the medical report of Dr Meadway, dated 21 October 2003. I note the treatment the claimant has already received to treat his leprosy. "7. In N, the Court of Appeal reconsidered the high threshold required to establish a breach of an individual's human rights based on that person's medical condition and whether there were exceptional circumstances over and above the absence of affordable treatment such that the humanitarian appeal cannot properly be resisted. "8. The Adjudicator considered the medical evidence and the provision of healthcare, see paragraph 6 [a mistyping for paragraph 26] of the determination. "9. Having considered the medical evidence and the absence of a suitable reason for the delay, these are not special circumstances rendering it unjust to refuse the claimant permission to extend time to appeal."
[16]The reference in paragraph 6 of the reasons was a reference to a report, which was not before the Adjudicator but was before Mr Jordan. It is a significant document from an acknowledged expert in the field. It bears extensive citation:
"Mr B's health: summary of my previous report."
[17]I interpose, this was a reference to a detailed report of 12th June 2003, which was not before the IAT, so that Mr Jordan did not have the opportunity to take it into account and I do not consider it right to refer to it. "Mr B has very advanced HIV disease as shown by his profoundly low CD4 count. He has rapidly progressive HIV disease as shown by his high viral load. Mr B has leprosy affecting his face and his eye. Mr B is having treatment for his HIV and his leprosy. If he continues both treatments in full dose he can expect to live for some years. "If Mr B does not continue full treatment for his leprosy, his leprosy will deteriorate and this will lead to a deterioration also in his HIV. If Mr B does not continue antiretrovirals in full doses his HIV will deteriorate, leading to severe opportunistic infections and other AIDS complications. His leprosy will also deteriorate. "In Uganda Mr B would not have access to free antiretrovirals. He would not have access to full treatment for opportunistic infections and other complications."[18]Under the heading "Mr B's current treatment", Dr Meadway said:
"Many medications interact with antiretroviral drugs and cannot be used at the same time. Rifampicin is the most potent component of standard combination treatment for tuberculosis and leprosy, but cannot be used with many antiretroviral drugs because of troublesome interactions. Rifabutin is a drug in the same group as rifampicin and shares its effectiveness in combination therapy for tuberculosis and leprosy, but its interactions are less marked and it can be used with antiretroviral therapy ... Mr B cannot take standard rifampicin combination treatment for his leprosy while taking his present antiretroviral regime."
[19]The report goes on to state:
"Mr B's prognosis if he remains on antiretrovirals and leprosy treatment. "
On his regime Mr B's viral load is completely suppressed (less than 50) and his CD4 has risen to 80. His CD4 would be higher if he had not developed leprosy. The effectiveness of his treatment is likely to persist whilst he is taking almost 100 per cent of doses of his antiretrovirals as long as he also has full leprosy treatment. If Mr B continues to take his medications in this way and his HIV physician and tropical diseases specialist continue to monitor him and to plan treatment in the UK then he can expect to survive for some years in reasonable health with improvement in his leprosy and without opportunistic infections or other AIDS-related complications. "Mr B's prognosis if he does not have antiretrovirals and leprosy treatment. "If Mr B has no antiretrovirals or inadequate antiretrovirals then his HIV will deteriorate, leading to opportunistic infections and other complications. His leprosy would deteriorate as a result of the worsening immunity. "If Mr B did not have full leprosy treatment then his leprosy would deteriorate. Mr B has leprosy involving the face and eye. Any deterioration would lead to tissue destruction and loss of the eye. Further extension of the leprosy infection would lead to destruction of the nose, causing terrible disfigurement, and involvement of other eye would lead to total blindness. Extension to other parts of the body could lead to loss of fingers and toes and severe disability. Deterioration in the leprosy will also worsen Mr B's HIV disease, making him more likely to develop other AIDS complications. His tuberculosis would be likely to recur and to become disseminated throughout the body, leading to fevers, sweats and extreme weakness."[20]She then goes on to review the availability of leprosy treatment in Uganda. Her conclusion is straightforward:
"While standard anti-leprosy treatment may be provided free in Uganda, the alternative anti-leprosy treatment of rifabutin and azathiaprine required by Mr B would not be provided free by the Government or by NGO healthcare providers ... The medical information department of Pharmacia, the UK firm manufacturing rifabutin, inform me that they do not export rifabutin to Uganda. They have no export or import licence for Uganda and anyone wishing to import rifabutin from a country to which Pharmacia supply rifabutin would first have to make arrangements in Uganda for its import licence. It is therefore not possible for Pharmacia to state any price applicable in Uganda."
[21]She goes on to review the cost of rifabutin and concludes:
"Organisations treating leprosy would not make arrangements to import rifabutin as an alternative treatment in view of its high price and their access to standard treatment without payment."
[22]Her overall conclusion on the effect of Mr B returning to Uganda is:
"If Mr B returned to Uganda he could have full leprosy treatment only if he stopped his antiretroviral treatment. His health would then deteriorate and he would be prone to AIDS-related complications. He could have antiretroviral treatment only if he paid for it and while taking it would not have access to compatible anti-leprosy treatment. "
In Uganda Mr B would not have access to full therapy for his HIV and his leprosy and his health would deteriorate as a result, leading to severe physical and mental suffering and distress."[23]Although not explicitly referred to in Dr Meadway's report, it is not disputed that leprosy sufferers in Uganda are the subject of ostracism by many persons with whom they might be likely to come into contact.[24]Miss Ward for the claimant acknowledges that Mr Jordan was, and I am, bound by the decision and reasoning of the Court of Appeal in N. N was a failed asylum seeker who suffered from HIV at an advanced stage. Her CD4 count was 20 and her viral load 50,000. Miss Ward submits that the claimant is at a somewhat more advanced stage, or was on his admission to hospital, but not so much as to make a material difference by itself.[25]The evidence of Dr Labalestier in N was that her life expectancy in Uganda would be under 12 months. The Adjudicator found on the basis of that evidence and the evidence of Dr Meadway that:
"The condition from which she now suffers is indeed AIDS and that without the sophisticated treatment which is she is now receiving she would die within a matter of months. I find that the treatment she needs would not be available to her in Uganda."
[26]Unlike the claimant, N did not suffer from the additional and complicating condition of leprosy. The Court of Appeal concluded, with evident reluctance, that the decision of the European Court of Human Rights in D v United Kingdom24 EHRR 423 required it to acknowledge that in certain extreme circumstances, deportation of a person from the United Kingdom to a third country in which that person would not be subject to treatment which infringed Article 3 of the convention would nevertheless cause the United Kingdom to be in breach of that article.[27]In the course of his judgment, Laws LJ acknowledged the description of that principle given by counsel for the Secretary of State as "an extension of an extension." See paragraph 37.[28]Laws LJ stated the test applicable in paragraph 40 of the decision, having acknowledged that domestic courts should follow D v United Kingdom:
"But I am no less clear that Dshould be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances which press with equal force. That said, in the light of the considerations I have described I would hold that the application of Article 3, where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. "
This does not, I acknowledge, amount to a sharp legal test. There are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which, like this one, demand one's sympathy on pressing grounds. On its facts, Dwas such a case."[29]Dyson LJ stated the test in similar terms in paragraph 47:
"Sadly, there are many examples of persons who enter the UK and other Member States from developing world countries and who suffer from HIV/AIDS. They receive sophisticated treatment here and if returned to their countries of origin they will receive much less effective treatment and, in some cases, no treatment at all. The antiretroviral drugs which they receive in this country may give them a life expectancy of many years. If they are returned to their countries of origin their life expectancy may, and in many cases almost certainly will, be substantially reduced. But, tragic though all such cases are, it seems to me that it is clear from Dthat the ECHR would not, without more, recognise such cases as raising humanitarian considerations so compelling as to engage Article 3. "
The court would not regard such circumstances as exceptional, still less very exceptional. The fact that an applicant's life expectancy will be reduced, even substantially reduced, because the facilities in the receiving country do not match those in the expelling country is not sufficient to engage Article 3. Something more is required. I have already referred to the special circumstances which enabled the court in Dto find that Article 3 was engaged. I do not say that Article 3 will only ever be engaged where the applicant is in the last stages of a terminal illness. But I consider that the class of case recognised in Das engaging Article 3 should be confined to situations where, broadly speaking, the humanitarian considerations are as compelling as they were in that case."[30]Both Laws and Dyson LJJ concluded that Ndid not satisfy that test and rejected N's appeal from the IAT, which had overruled the Adjudicator's decision.[31]Carnwath LJ, while agreeing with the reasoning of Laws LJ, concluded that it was for the fact-finding tribunal, not the Court of Appeal, to determine whether Nsatisfied the test and he would have remitted the case to the IAT for further decision.[32]By way of illustration of the difficulties of defining the threshold, CA v the Secretary of State for the Home Department [2004] EWCA Civ 1165, decided on 20th June 2004, was cited. It decided under the new regime that:
"An Adjudicator's decision that to send a HIV positive expectant mother to Ghana in circumstances in which it was unlikely that she would witness the collapse and possible death of her newborn child from HIV transmitted by delivery or by breast feeding by her was capable of satisfying that test as a matter of law."
[33]Miss Ward submits that I should decide that the claimant's circumstances satisfy the test in Nor, alternatively, that I should hold that they are capable of satisfying it.[34]I decline her first proposition. I am not the fact finder. It is for the Adjudicator, and because this is a pre-9th June 2003 case, on a full appeal for the IAT, to decide the facts. But I accept that the claimant's condition is capable of satisfying the test or, put another way, it is arguable that it does.[35]I reject Miss Broadfoot's submission that a close analysis of Dr Meadway's report of 31st October 2003 shows that all she is saying is that the optimal treatment available in the United Kingdom will not be available to the claimant in Uganda.[36]On the contrary, a fair reading of her report, together with that of Dr Wood, is that without the cocktail of drugs prescribed for the claimant in the United Kingdom, he will deteriorate rapidly and die soon and that such a cocktail of treatment is not available in Uganda.[37]Further, as his leprosy worsens he will not only become disfigured and sight impaired and possibly blind, he will be shunned by many of those in Uganda with whom he comes into contact.[38]There is, in short, in my view, clear evidence that he will not only suffer more and die more rapidly from HIV and AIDS, but will do so in circumstances of degradation brought about by the combination of that condition and leprosy.[39]Against that background I have to review the IAT's decision and reasoning. I do so, as is common ground, on Wednesbury principles and I have reached the following conclusions.[40]First, the IAT's conclusion that no "suitable" reason for delay was shown is unimpeachable. This is a significant factor to be weighed in the balance when deciding whether or not to extend time. See the observations of Sedley LJ in Tofik v IAT[2003] EWCA Civ 1138, decided on 21st July 2003, in paragraph 14 when he observed:
"In all cases, the quality of the explanation for the delay is likely to influence the ultimate grant of leave to appeal."
[41]Secondly, the decision of the Adjudicator was flawed in that he failed to refer at all to an obviously significant factor in the claimant's condition, his leprosy and its consequences.[42]Thirdly, and accordingly, the bland statement in paragraph 8 of the IAT's reasons is not adequate to deal with the Adjudicator's conclusions on medical issues.[43]Fourthly, the implied decision, for it is not expressly so stated, that the decision of the Court of Appeal in Nmandates the answer that the claimant's case does not cross the high threshold is, in my view, erroneous. In those circumstances, the decision of the IAT is itself flawed. It is not, however, for me to decide what it would or should have decided if it had performed its task in a way which was free from error.[44]This is a case in which the proper decision-making body, the IAT itself, could come to a conclusion either way once it addresses the question which it has to decide in the light of the conclusions which I have reached.[45]The only satisfactory course I have concluded is for me to quash the decision and remit it for decision afresh by the IAT. The ultimate task of the IAT is to decide if it is unjust to refuse to extend time notwithstanding the delay and the lack of good reason for the delay, having regard to, first, the errors in the Adjudicator's approach which I have identified and secondly, the fact that the claimant's human rights claim is, in the light of the evidence of Dr Wood and Dr Meadway, at the very least arguable.[46]I think in the light of that, Miss Ward, the order that I must make is that I quash the decision of the IAT and remit it for further consideration. I would welcome your submissions on what, if any, further material can properly be submitted to the IAT for its consideration on re-determination.[47]MISS WARD: I am grateful, my Lord. I agree with you about what you say about the order that follows from your judgment.[48]In relation to the submission of further material, there has been -- and my learned friend will correct me if she has any better information than I do. My experience is that generally in this sort of claim either it is agreed that the matter should go back, and in that situation it is very often agreed that further grounds can be drafted for consideration, or the court -- I have never experienced a case where this sort of decision has been remitted.[49]MR JUSTICE MITTING: It cannot arise now. On the statutory review, the decision is either affirmed or quashed.[50]MISS WARD: That is absolutely right. So in the absence of experience of this situation, all I can say is the only experience I have had is situations where the claim has been sent back by consent and then fresh grounds have been drafted. I would not seek to draft a fresh ground. In my submission, it would be pointless for the IAT to consider the matter as of a year and a half ago. It simply would not make sense because in a full hearing the IAT would have to consider the position as of now.[51]On that basis, I would seek to submit that we ought to put before the IAT all the material that we have because not to do so would simply be for the IAT to consider it on what we know is not currently the situation.[52]MR JUSTICE MITTING: Is what you are submitting this, that although the grounds remain the same, the material lodged with the IAT in support of those grounds should be expanded to include all of the latest reports?[53]MISS WARD: My Lord, yes.

MR JUSTICE MITTING: Do you disagree with that approach?

[55]MISS BROADFOOT: No, my Lord. Can I just be clear that what is being quashed is the IAT's refusal for leave to appeal.

MR JUSTICE MITTING: Yes.

[57]MISS BROADFOOT: Because under the old scheme, it follows that the IAT would reconsider whether or not to grant an appeal in accordance with the comments made in your Lordship's judgment.

MR JUSTICE MITTING: Precisely.

[59]MISS BROADFOOT: I do not see how we could have any objection, but I will just double-check. The Secretary of State has no objection to the claimants lodging additional material to the IAT, it is a matter for the IAT what they do with it. I do not represent the IAT. It would not be right for me to say what the IAT should and should not consider, my Lord.[60]MISS WARD: My Lord, I simply draw one thing to your attention (inaudible) not considering material grounds submitted after the original application was submitted. It was not before you and it was not an issue that we anticipated arising, so in the absence of any direction from you the IAT would not be required to consider anything that is not already before it. It is a matter for you whether you think the IAT should simply look at what is already before it in the light of your judgment or whether you think it would be helpful for the IAT to have the full body of material.[61]MR JUSTICE MITTING: Given the nature of the proceedings before the IAT, in other words the old-fashioned appeal procedure, I think it is right that the IAT should have all of the material which I have seen, albeit not referred to in the judgment, because I thought it right to confine my judgment to the material which the IAT had.[62]MISS WARD: I am very grateful.

MR JUSTICE MITTING: Are there any further or consequential applications?

[64]MISS WARD: My Lord, the claimant is publicly funded so first of all I seek the usual order for the Legal Services Commission's detailed assessment of costs in any event.

MR JUSTICE MITTING: Yes, you can have that.

[66]MISS WARD: I do seek my costs of the application. We have substantially succeeded. One of the things we sought in the claim form was the quashing of that grant of permission and, subject to what my learned friend has to say, I make an application for costs following the event.[67]MISS BROADFOOT: My Lord, I cannot oppose the costs, save for the costs relating to the two December reports, which we said were inadmissible. They were indeed inadmissible, they have not been referred to. With the exception of those two reports, I cannot oppose the Secretary of State paying the applicant's costs.[68]MR JUSTICE MITTING: That seems to me to be right, Miss Ward. Although it was no doubt helpful to have them in to explain to me, the layman, to such extent as I did understand it, the complications about the treatment, it is not material which I have taken into account nor in principle could I have taken it into account.[69]MISS WARD: My Lord, I have no objections to that.[70]I am reminded from behind me -- it is not on the point about costs, we are fully in agreement with your Lordship about that.[71]MR JUSTICE MITTING: May I make the order then. I order that the interested party will pay the claimant's costs, excluding the costs of obtaining the medical evidence to which I have not expressly referred in the judgment. To be the subject of a detailed assessment if not agreed.[72]MISS WARD: The only other matter I am being reminded of from behind me is the issue of the transcript because that will need to go, obviously, to the IAT to be considered or for them to consider it in accordance with your judgment. They will need to see it. I do not know how long that will take.[73]MR JUSTICE MITTING: My experience is that transcripts are produced for correction within days. If it is produced within that period, then I will correct it and you will have it back soon.[74]MISS WARD: Very grateful, my Lord.

MR JUSTICE MITTING: Anything else, Miss Broadfoot?

[76]MISS BROADFOOT: No, my Lord, I am grateful.[77]MR JUSTICE MITTING: For the avoidance of doubt, I direct that the claimant may submit to the IAT and, if the claimant so chooses, the IAT should take into consideration all of the medical evidence which was included in the bundle, submitted to me for the purposes of this hearing, including that to which I have not made express reference in the judgment.[78]MISS BROADFOOT: I do not know whether, just as a matter of practicality, your Lordship wants to give some sort of timeframe because on an open-ended direction one could say the IAT has to wait another three months until we have everything together.[79]MISS WARD: It is all together. We can do it as soon as we have the transcripts. If you say within seven days of the transcript being available, we will do that. I do not anticipate a problem.[80]MR JUSTICE MITTING: It is in everybody's interests that this matter should be resolved and I will include in the order a direction that within seven days of receipt of the approved transcript, the claimants are to resubmit the documents to the IAT for its further consideration.[81]MISS WARD: I am very grateful, my Lord.