British Union for the Abolition of Vivisection, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 250 (Admin)

Case No CO/7004/2003[2006] EWHC 250 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 31st January 2006
Strand
London WC2
B E F O R E:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF THE BRITISH UNION FOR THE ABOLITION OF VIVISECTIONClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
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 RICHARD DRABBLE QC AND MR SIMON COX (instructed by David Thomas, BUAV, 16a Crane Court, London N7 8NN) appeared for CLAIMANTMR JONATHAN SWIFT (instructed by The Treasury Solicitor,) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BEAN: This is an application by the British Union for the Abolition of Vivisection, the claimant in judicial review proceedings, for a protective costs order. The claimant is a well-known company, limited by guarantee, that claims to be the leading antivivisection body in the UK. Like Stanley Burnton J, who heard a permission application last year, I should record that the claimant campaigns by lawful means, in particular seeking to uphold the law providing for the protection of laboratory animals.[2]The Animals (Scientific Procedures) Act 1986 regulates circumstances in which animals may be used for experimental or other scientific purposes. It prohibits such procedures where they may have the effect of causing a vertebrate pain, suffering, distress, or lasting harm unless authorised by licences granted by the Home Secretary under the Act to animal researchers.[3]The present proceedings challenge the terms of licences granted to Cambridge University. There are four surviving grounds on which permission has been granted: two by Stanley Burnton J and the other two, on appeal, by Keene LJ. I note what these judges respectively said about the public interest in this case. Stanley-Burnton J, who had granted permission on two grounds but refused it on two others, awarded the Secretary of State only 50 per cent of his costs and said:
"I do seek to make the least order that I can because this was a public interest case and matters were genuinely in the public interest."
In due course, by consent, however, that costs order was altered so that the entire costs of the permission hearing had become costs reserved. That followed Keene LJ's decision, to which I referred, where he said:
"... there is a public interest in clarifying these matters and, given the merits of these two grounds [that is grounds 1 and 2], the passage of time should not in all the circumstances have stood in the way of permission to seek judicial review."
[4]The case is now proceeding towards a substantive hearing and I need only say that the costs already incurred are very substantial. The defendant's estimated costs to date, including VAT, are some £90,000 and the projected costs from today up to the end of the substantive hearing may be as much as a further £60,000, depending on the amount to be spent on expert evidence. The claimant is thus faced with the possibility, if the claim goes wrong for them, they lose on all points and they are ordered to pay the Secretary of State's costs, of an adverse costs order potentially of £150,000, although Mr Jonathan Swift for the Secretary of State rightly argues that the process of detailed assessment would be likely to reduce that sum perhaps to something in the bracket of £100,000 to £120,000.[5]The leading authority on protective costs orders is now the decision of the Court of Appeal, Lord Phillips MR, as he then was, Brooke LJ and Tuckey LJ in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600. At paragraph 74, that judgment stated that the governing principles are as follows:
"1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: I) The issues raised are of general public importance; Ii) The public interest requires that those issues should be resolved; Iii) The applicant has no private interest in the outcome of the case; Iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; V) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing."
After a reference to cases where the applicant's representatives are acting pro bono, the Court of Appeal said that:
"It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."
[6]The claimant's case is not that an adverse costs order, even in the sum of £150,000, would put it out of business. The important figures in the evidence of the claimant's chief executive, Mr Sansolini, are as follows. The BUAV's income for the years 1996 to 2003 averaged some £1,240,000. It had much better years in 2003/4 and 2004/5, respectively £1,730,000 and £1,819,000, but that was because of two good years of legacies. Legacies generally averaged about half the union's income, although for the two good years they represented nearly 60 per cent of income. Legacies, for obvious reasons (as Mr Sansolini points out) are a notoriously uncertain form of income: wealthy testators do not die at predictable intervals.[7]The reserve of the union as at 31st October 2005 stood, in round figures, at £1,035,000. The union budgets for a slight deficit in the current year. They have substantial personnel costs, which are effectively fixed unless staff are made redundant. They spend a considerable proportion of the budget on fundraising, since otherwise future income would dry up, and the amount of what Mr Sansolini describes as "free income available for campaigning, lobbying, research and investigative work" is around £230,000 per year, if one excludes proportionate salaries and overheads attributable to campaigning, or a little over £400,000 if one includes those overheads.[8]In paragraphs 24 and 25 of his statement, Mr Sansolini says this:
"24. Were we to lose the case, and ordered to pay all the Secretary of State's costs, we could be considerably financially embarrassed, with redundancies possible. It would significantly restrict the work we are able to do. It is important to stress in the current climate of extremism by a small minority that the BUAV is a wholly law-abiding organisation. Already, our resources are infinitesimally small compared with the multinational companies, governments and international institutions which defend and promote animal experiments..." "25. Although we have demonstrated, by the cap of £20,000 we have suggested, that we are willing to take the risk of substantial adverse costs (in addition to the sums we have to pay our solicitor), it would not, I believe, be fair for us to risk a sum in excess of this. Important though the case is, the BUAV could not, given its limited resources, the insecurity of its income base and all the other demands on its income, responsibly run the risk of costs at anything like the level contemplated by the Secretary of State. It is worth reiterating that the BUAV has no private interest in the outcome of the case."
As Mr Sansolini goes on to record, in paragraph 26, the claimant is willing to limit its own claim for costs should it be successful to the same sum as that specified in the protective costs order. It suggests £20,000.[9]Mr Swift, on behalf of the Secretary of State, opposes the making of a protective costs order on a number of grounds. Firstly, he draws my attention to paragraph 72 of the judgment in Corner House, in which the Court of Appeal, after referring to the judgment of Dyson J, as he then was, in R v Lord Chancellor ex p Child Property Action Group [1999] 1 WLR 347, added:
"Dyson J said that the jurisdiction to make a PCO should be exercised only in the most exceptional circumstances."
However, the next sentence is in my view significant as well. The court added:
"We agree with this statement, but of itself it does not assist in identifying those circumstances."
They went on, after further reference to Dyson J's decision, to restate the governing principles in paragraph 74, which I have already set out in this judgment.[10]In other words, the requirement that a PCO should be made only in the most exceptional circumstances is not a sixth principle to be added to paragraph 74. It is an umbrella principle, which is defined by the five conditions in paragraph 74. Those five conditions are unlikely to be satisfied in the great majority of cases. Accordingly, a protective costs order is a most exceptional form of[11]Mr Swift next emphasised upon the fact that a measure of protection for unsuccessful litigants is already provided by the process of detailed assessment, to which I have already referred. That, in my submission, is not an argument against the grant of a protective costs order. The process of detailed assessment of costs on the standard basis is a question of dividing, the burden of proof being on the paying party, whether costs incurred by the conceding party were reasonably incurred. That assessment does not have regard to the means of the applicant nor to the public interest in the litigation. Mr Swift was right to say that £150,000 is very much a "worst case scenario" but I think the only relevance of the assessment process is to bring the likely figure, on what is inevitably a somewhat provisional and uninformed estimate at this stage, to be £100,000 to £120,000, rather than £150,000.[12]Mr Swift also submitted that even the Secretary of State should not be expected to spend money on litigation like water but should conserve taxpayers' money sensibly; and that the grant of a protective costs order, if the claimant failed in the litigation, would have the effect of leaving the Secretary of State, and thus the taxpayer, to whistle for a significant sum in costs in respect of litigation which the defendant wishes had never been brought. That is indeed a relevant factor. It is taken into account in criterion (iv) in Corner House, paragraph 74, to which I shall return.[13]The next point made by Mr Swift was a response to references in the claimant's evidence and submissions to the case of Refugee Legal Centre v Secretary of State for the Home Department [2004] EWCA Civ 1296. I have not been shown the judgment in that case but it is briefly referred to in the Corner House case at paragraph 71 and 75. Brooke LJ, following a two hour hearing, made a protective costs order to protect the claimant, the Refugee Legal Centre, in respect of the costs of a forthcoming one day substantive hearing of an appeal. The claimant's evidence refers to the fact that the Refugee Legal Centre's income and expenditure were very much more substantial than those of BUAV. Mr Swift, on the other hand, submits in response that analysis of the RLC's income and expenditure account demonstrates that two-thirds of their income comes from a Government grant, that the purposes for which the grant can be applied are restricted and that most of their available cash is in a restricted fund. I do not think that the Refugee Legal Centre decision is authority for any more nor any less than this: the fact that a not-for-profit organisation has a substantial turnover and that it would not be forced into liquidation by an adverse costs order in the proceedings concerned does not disqualify it from applying for a protective costs order. The financial resources of the applicant are relevant (see Corner House criterion (iv)) but there is no requirement that failure in the litigation would be financially fatal.[14]Mr Swift's main point is that it is a matter of choice for the Union how it applies its funds. It could bear an adverse costs order in the sum of £100,000 or even £150,000 without being wiped out. It could spend less, in the year of such an order being made, on campaigning. It could make staff redundant. It could spend less on fundraising, although that may be seedcorn for the future. It is, he submitted, a substantial organisation which could take the costs risk if so chooses. If it chooses not to, it should not expect special protection from the court.[15]I should record that Mr Swift valiantly attempted to argue that, despite the observations of Stanley Burnton J and Keene LJ about public interest, which I have already cited, this is not a case where the public interest requires that the issues in the case be resolved. He accepts that ground 3 of the four grounds on which permission has been granted is an issue of general public importance but submits that it is the one whose resolution will cost least. The expensive ones, that is to say those which will involve the placing before the court of evidence, including expert evidence, are issues one and two which Mr Swift submitted may be interesting but are not of general public importance. However, I am not prepared to depart from what seems to me the clear indication given by Keene LJ that there is a public interest in clarifying the matters raised in grounds 1 and 2, notwithstanding a potentially viable delay argument; and it seems to me, in any event, coming new to this case, that the issues raised in ground one and two are of general public importance.[16]So when going through the criteria in Corner House, paragraph 74, I am satisfied firstly that the issues raised are of general public importance and that this is not confined to grounds 3 and 4; secondly that the public interest requires that those issues should be resolved; thirdly, and this is not in dispute, that the applicant has no private interest in the outcome of this case.[17]I will take next criterion (v). I have already read paragraph 25 of Mr Sansolini's witness statement. I suggested to Mr Drabble that it appeared to have been carefully worded and he confirmed, quite properly, that it had been. My interpretation of it is that, if no protective costs order were made, the applicant would probably discontinue the proceedings and would be acting reasonably in so doing. That seems to me to come from the second sentence; the Union "could not responsibly ... run the risk of costs at anything like the level contemplated by the Secretary of State". On the other hand, that paragraph does not say that any protective costs order with a cap in excess of £20,000 would certainly, or indeed probably, have the same outcome.[18]I return to Corner House criterion (iv). Having regard to the financial resources of the applicant and the respondent and the amount of costs likely to be involved, is it fair and just to make an order? I have already set out the relevant factors about the financial resources of the applicant and the respondent and that the amount of costs likely to have been involved if the Secretary of State is successful on all points is something in the order of £120,000. The BUAV is accepted to have standing in this case and, indeed, I agree with Mr Sansolini's observation in paragraph 27 of his witness statement that:
"... it is only an NGO with specialist expertise which would be able to bring a judicial review of this nature. Unlike most other public interest cases, there is no individual who could bring the case in this area - laboratory animals are necessarily dependant on expert advocacy to represent their interests."
I also accept that the BUAV is a responsible organisation and that it is the responsible and reasonable decision that it is not prepared to put £150,000 of its money or even £100,000 to £120,000 of its money at risk, or an inter partes costs order, in addition to the more limited but still significant costs which it will incur itself. I consider that it is fair and just to make a protective costs order. I do not, however, consider that it would be right to make a protective costs order with a cap as low as £20,000, which would be no more than one fifth or one sixth of the likely maximum order for costs in favour of the Secretary of State. A fairer figure, balancing the factors referred to in paragraph 74 of the Corner House case in the light of the figures I have set out, would be a cap of £40,000. I shall therefore make a protective costs order in that sum.[19]MR DRABBLE: My Lord thank you for that order. I think the next topic is expert witnesses.[20]My Lord, I explained to you before lunch that our stance was not to object but with a reservation about whether it is truly going to go to the legal issues or not; but all of the parties are going to have to think about that. My Lord, it seems to me that, in those circumstances, this is an area of dispute, as my learned friend, Mr Swift, has effectively said, between us as to whether there should be an order that provides for a sequential exchange to be made to the witness reports or for exchange -- a sequential order or for exchange. We firmly submit that the right order is sequential because, frankly, we do not know -- we know the areas that my learned friend wishes to cover. We have not seen them yet but there are instructions. He may or may not think it appropriate to rely on the law as an answer or expert evidence as an answer but we certainly do not want to be engaged on that until we have seen it. It is unusual case. It may well be true, a pure fact case, that one would do it by exchange of experts. It is not a matter of slotting it into the framework of Judicial Review, but to lodge it from where we now are, should be -- the Home Office should put together its evidence and then we can decide what we are going to do with it. Now, my Lord, on that basis --

MR JUSTICE BEAN: Is that disputed?

[22]MR DRABBLE: Yes.[23]MR JUSTICE BEAN: Right. Can you show me what there is so far, either by way of expert evidence or by way of people for either party setting out what I might call quasi-expert evidence?[24]MR DRABBLE: That is not very easy.[25]MR SWIFT: My Lord, I might be able to assist, at least to some extent. If one takes the application itself, my application for expert evidence, my Lord, that is at Tab 4 of your bundle. Behind the proposed draft order, I think at page 105, is effectively a letter from my instructing solicitor that sets out the basis on which the application was made. My Lord, it falls into two parts, A and B, and if one looks at page 106, the paragraph that starts on that page, the last sentence of that paragraph refers to statements already served from the claimant by Dr Lewis and Professor Morton, which are of an expert nature. My Lord, if you go down to the heading B, in the middle of the page, dealing with the second area where experts evidence is applied for, at the end of the first paragraph under B, one sees there a reference to statements already proffered from Dr Cronin and Mr Brend. So, my Lord, in part the reason for the application by me is to respond to the expert evidence that is already in play from Professor Morton, Dr Lewis, Dr Cronin and Mr Brend. My Lord -- sorry, if I may just have a couple of moments. I tried to hand Mr Drabble a while ago a document that I think fairly summarises where we have got to this morning.[26]MR JUSTICE BEAN: If you want to show him that and have a word with him, do not mind me, if it is quicker to do that.[27]MR SWIFT: It is probably easier if I could hand that to my Lord. (Handed) I apologise for the handwriting. I hope it is legible. The points that we dispute are those now shown in square brackets. My proposal, based on the application for expert evidence, is that expert evidence, whether it be by exchange or not, should be by 10th May.[28]MR JUSTICE BEAN: Yes. Your first two paragraphs are, I think --[29]MR SWIFT: Which, I think, are effectively agreed by us this morning. Mr Drabble's suggestion is number 4, that the claimant's expert evidence should be served at a date later than 10th May. My Lord, can I explain why there is a difficulty with exchange. There are the two reasons; one is a practical reason and one is a more procedural and technical reason. My Lord will see, on my proposed timetable, step 5, which is the anticipated hearing date, would take place, subject of course to the court's availability, on 4th June 2005.

MR JUSTICE BEAN: Have any enquiries been made as to whether a three-day slot then is practicable?

[31]MR SWIFT: My Lord, no. They have not and, clearly, we would not invite you to make an order in relation to the hearing date but clearly my clerk and Mr Drabble's clerk can go to listing and get the best deal that they possibly could.

MR JUSTICE BEAN: That is very realistic.

[33]MR SWIFT: I would not want to put you at odds with listings. I know how awkward it can get. On Mr Drabble's proposed timetable, which would include step 4, the consequence of 5 is that the hearing would probably realistically then take place, again subject to court availability, in July 2006. My Lord, the practical difficulty I have with this, I have explained this to Mr Drabble, is that -- as my Lord, I am sure, appreciates, based on a cursory perusal of this case -- the issues are very technical. In the course of this hearing so far, I have to say I have gained great assistance from those who sit behind me; both my instructing solicitor and the Chief Inspector of Animals and his predecessor. The difficulties in July would be in terms of the availability of those people to be in court to provide assistance on the issues of detail or technicality, which may or may not come up. Well, my Lord knows from practice the benefit that that can have. I would have difficulty in the hearing. That is the practical reason.[34]Coming back to the procedural reason, a difference between Mr Drabble and myself, accepted as set forth, is that I say the evidence should be by exchange and I think we are agreed that, when expert evidence is brought in, there should be a meeting between the experts to seek to agree points of agreement and points of disagreement, as one would expect. Mr Drabble said it should be by sequence. My Lord, I say two points. Firstly, it would be odd to have exchanges of expert evidence by sequence. It is certainly not usual where one has that, say, in an ordinary Queen's Bench trial. Usually, the points of agreement and disagreement are catered for by the meeting of experts, if you take for example the simultaneous exchange of statements. My Lord, in this case, as I say, the claimant has already relied on statements from four experts. To some extent, and to a large extent, I seek expert evidence in order to respond to those points, so that I and the court may be properly informed. The claimant knows the scope of the expert evidence that I seek to rely on. It is set out. The claimant is in a position now to know whether, or to take a view as to whether, it wishes to continue to rely on expert evidence it has already served or whether it wishes to submit additional expert evidence from one or more of those witnesses. In those circumstances, an exchange of expert statements is appropriate, rather than sequential. My Lord, the practical consequences of sequential exchange, which I say is unnecessary, is of course to cause me practical difficulties for the hearing, which is likely, at the earliest, to take place in July, rather than the one that would, at the earliest, take place in June. So, my Lord, the difference between us I think are minor but they are differences which we agree to accept and which I hope to resolve.[35]MR JUSTICE BEAN: Why the 10th May? I do not mean why the 10th, but why May? The litigation has been going on a long time. The letter you have just shown me was dated 12th December. It is not as though the Secretary of State's experts and advisers have had no time to think about it.[36]MR SWIFT: My Lord, the 10th May -- again, two practical reasons. Firstly, although work can start once permission is granted, that expert report would only be capable of being completed once all the evidence has been put -- the relevant facts have been put in and have been reviewed, and one sees that 7th April is the date on which the claimant may be required to reply. The other practical reason is this: the expert identified is Professor Flecknell and, as my Lord, I am sure, has already noted, Professor Flecknell is intending to deal with a wide range of issues. It is important to identify him as being someone capable of dealing with all of those issues, rather than having to have two or more experts. He is unfortunately unavailable in April of this year and so, although he will be able to commence work on the report as soon as he is instructed permission has been granted, he is not in a position to conclude the report in April, hence 10th May, which is a date chosen for no particular reason other than it was early in May.[37]MR DRABBLE: My Lord, we have a rival timetable, which we developed, having understood my learned friend's difficulty about the availability of his expert in April, and we desire it, if possible, to get something on before July, something which we strongly feel is important -- but it seems to us that one could make all of this work on the following basis. The defendants want to put in a further witness statement in addition to the one filed in October. If that was lodged by Friday 24th February, which is over three weeks from today, that would leave a timetable as follows: a reply by us, with factual evidence, by 10th March; their expert by 31st March, so some considerable time after their own factual evidence and sometimeafter our reply, if we want to put any in, and not being April; our expert by 5th May, which is a Friday; a meeting of experts by 19th May, in the week ending 19th May; and then a hearing date in June, following exchanges of skeletons following from that timetable. In our submission, that works.[38]Going back to the point, which is nearly a point of principle between us: should there be a sequence or should there be an exchange? We say, in these particular circumstances, where we have put in our evidence in front of the Home Office for some time -- I do not accept that there were four experts but I am not going to get into the detail of exactly which bits of our case are experts and which bits are grounds 1 and 2. They are replying to a cause already made by us, that is the essence of what my learned friend is just saying. We do not know what the answers to that reply are. In our submission, it is simply inappropriate for us to be sort of instructing our experts to start again from scratch, because we know --[39]MR JUSTICE BEAN: I need not trouble you on the principle of sequential evidence. You have set your stall out but the ball is now in the defendant's court. I would like to hear from Mr Swift on the practicalities of the dates.[40]MR SWIFT: My Lord, can I take a moment? I just want to take instructions on the dates. (Pause)[41]My Lord, thank you for that. I have to say that the difficulty we have is with paragraph one and the suggestion that that would be the 24th February rather than the 10th March. My Lord, the practical difficulty relates to the availability of Dr Fry, who will not be available for his statement. He is involved in other matters that are specific to legal proceedings under the Act which will -- he tells me, that he will know what the case is that he will be responding to on 16th February and then he will need to respondent to it, he has been told, by 20th February. Now, my Lord, assuming that after 20th February there is no consequential work on that other matter -- of course, that does give some leeway but it is a very tight timetable. My Lord, could I suggest, in the spirit of compromise, that paragraph one be dated 28th February, which will mean no change to any date that follows.[42]MR DRABBLE: We would be happy with that.[43]MR SWIFT: 28th February should be a Tuesday, I think.[44]MR JUSTICE BEAN: Well, that sounds all right to me. Defendant's evidence: 28th February. Claimant's evidence in reply, if any (and I indicate that we are talking about non-expert evidence): 10th March. Defendant's expert evidence: 31st March. Claimant's expert evidence in reply, if any: 5th May. Meeting of experts: week ending 19th May.[45]Now, subject to your views, it seems me that there ought to be a bundle, including a core bundle, agreed and lodged 14 days before the hearing, skeletons with reading lists and agreed authorities, seven days before the hearing. I wonder whether this is a hearing where the judge ought to spend the first day in his room reading the home work which you have set in the reading list. I simply ask the question.[46]MR DRABBLE: Yes, is my reaction to that.[47]MR SWIFT: My Lord, I am never against reading days. The question is: if the judge has a reading day, will Mr Drabble and I be able to deal with it in two days?[48]MR JUSTICE BEAN: Well, those are the considerations. What do you think? I am just thinking -- part of the difficulty in getting a three-day slot is the availability of judges; partly, in this building, the availability of courtrooms; and, also, there is a costs factor, since we have been talking about costs all day.[49]MR SWIFT: If Mr Drabble thinks that he will be able to open the case in less than a day and to allow me a short time at the end of the second day to reply, I am content to agree to, effectively, what would be a two day hearing.[50]MR JUSTICE BEAN: That would give some reading time. What do you think?[51]MR DRABBLE: I certainly think a reading day is a good idea. I am trying to think of the reality -- because the history has been hard to identify, a number of times it has had to be explained, starting from scratch, before. So a reading day, I submit, is a very good idea. I do not think we could have an absolute guarantee that it would be finished in two days thereafter, because if it was on the basis of three days but without a disaster if it trickled over because of, ie a reading. Two days, but listed on the basis that it is not the end of the world if it trickles over.[52]MR SWIFT: Well, my experience is that it is the end of the world.[53]MR JUSTICE BEAN: Yes, it is the end of the world. Also, this is not a case in which the judge, hearing a substantive application, is going to want to give a judgment off the cuff and the ideal, certainly, would be to have much of day 3 to start writing one's thoughts down, otherwise, weeks later, it is difficult to remember anything and there would be a substantial delay in that. I think the ideal would be to have a reading day and then three days of hearing. I am in no position to order the listing authorities to do anything but that would seem the ideal.[54]MR SWIFT: May I make one other suggested tweak to the pre-trial arrangements? Could I suggest that the bundle be agreed and lodged 21 days before the hearing and that there be the usual sequential serving of skeletons in the days after: 14 and seven days.

MR JUSTICE BEAN: No problem about the first.

[56]MR DRABBLE: No problem about the first. I am fairly indifferent to the second myself. We have actually set out our case at all times now but obviously we do not know the extent to which it is going to be changed by the expert evidence.[57]MR JUSTICE BEAN: The claimant's skeletons 14 days before the hearing; the defendant's skeleton seven days before the hearing. The time estimate three days, with one day reading before the hearing. I will say in the summer term, to be heard, if at all possible, by 27th(?). I think that the best I can do.[58]MR DRABBLE: I am grateful for that. My Lord, there are two other matters on the expert evidence. Can I hand up a sheet of paper. On none of these do I want to spend any great deal of time. If your Lordship looks at tab 4, the order is a draft order requiring the expert to address a list of issues, set out in paragraphs one and two in relation to each of them. We do have a concern that, for example, issue (i), at the foot of page 102, is a mixed question of fact and law. It is potentially asking the expert both to describe what the animal will experience in his expertise, to construe the guidance and then to give answer to the question of his construction of the guidance -- the construction, by the way, being one of the issues we are going to be arguing about. The same is true of, say, (iv) and it certainly seems to us that the Home Secretary would have permission to put in the expert evidence that he regards as relevant if one effectively shortens the description of the issues, certainly under issue (i), quite considerably, as it is done on the piece of paper that your Lordship has just been handed. (Handed) Plainly we accept, on what we have taken today, that it is appropriate for the Home Secretary to have permission to put in evidence explaining the impact on the animal that is carried forward and either it will be obvious from the construction of the documentation that that does or does not meet the definition of substantial within paragraphs 541 and 542 or there will be a further legal argument about what those paragraphs truly mean. It seems that one should not be rolling the two together.

MR JUSTICE BEAN: What issues have your --

[60]MR DRABBLE: So far I have not quite addressed it in this series of steps. I do not know why it needs to be relevant -- can I just say, I am not objecting to the experts saying anything that reasonably arises under ground 1. It just seems to me to be inappropriate for the court to say: "you must answer the following questions".[61]MR JUSTICE BEAN: Well, I do not feel that I have the knowledge about the case to direct Professor Flecknell, or those who are going to reply on your behalf, what issues to address. Could one not have the order in terms of the Treasury Solicitor's draft but, instead of saying "addressing the following issues", something like "addressing such of the following issues as are appropriate" or something like that.[62]MR DRABBLE: I think, having put down on the marker, then we can put something in. As long as it is clear that there is a distinction between expert evidence on the animals reaction, essentially what is sought here on the construction of the code.

MR JUSTICE BEAN: Would you have any objections to that.

[64]MR SWIFT: I am rather concerned about this. I am yet again taken by surprise by Mr Drabble.[65]MR JUSTICE BEAN: I am inclined to think at the moment, Mr Swift, that, if I am going to have to decide which of these grounds are relevant, it is another half-day and it would not be now.[66]MR SWIFT: I would not invite you to.

MR JUSTICE BEAN: It is yet more costs.

[68]MR SWIFT: Indeed and all are matters that I understood from the drafting were agreed between Mr Drabble and myself. My Lord, your suggestion of adding, as it were, a few words at end of paragraph (i): my Lord, I would invite you to leave it as it is. Firstly, the words added may lead to confusion as to whether in fact I do have your permission to leave the expert evidence that I am seeking permission to leave because it begs the question of who decides what is appropriate. My Lord, the reason why I would invite you to leave the Roman numbered paragraphs under 1 as they are is that Mr Drabble's suggestion, as I understand it, to replace them all with a single paragraph from the piece of paper he has just introduced, is in substance, I am sorry to say, an exercise in gamesmanship. The issues identified in the draft order are issues squarely raised by his witnesses of fact and his expert witnesses. He is seeking to deprive the Secretary of State of the opportunity to respond to those points. It is disappointing he did not put me on notice of it before quarter to three this afternoon. So, my Lord, I would invite you to make the order without any substantial changes or indeed any change at all.[69]MR JUSTICE BEAN: I shall make the order but with this change of wording: five lines down from the words "it is ordered", instead of "addressing the following issues" I shall put "addressing such of the following issues as Professor Flecknell considers to be relevant".[70]Are there other points on the details, Mr Drabble?[71]MR DRABBLE: The only other issue is that, as it is an order for experts, we assume that we will be shown the instructions that take effect in the documentation that we are being asked to look at.[72]MR SWIFT: My Lord, sorry, again this is a point which arises on the hoof. I am not convinced in my own mind that Mr Drabble is entitled, as of right, to see the instructions. I appreciate that it does not automatically apply to them. Could I invite my Lord to leave the matter as this: that those instructing me, once the instructions are drafted, will give proper consideration to whether they are disclosable or whether perhaps a shorter version or the gist of the instructions should not disclosed rather than the full document.[73]MR JUSTICE BEAN: I think there is provisions for this in the White Book. I think what I am going to do, gentlemen, is to invite you to spend the next five or ten minutes -- I have a judgment to give in the first case today, where the claimant did not turn up. There is no reason why you should listen to that. Can you see if you can resolve any of your differences about those directions outside while I do that and then we will resume this, if necessary referring to the White Book? (A Short Break)[74]MR DRABBLE: My Lord, your Lordship is right. There is a specific provision in the White Book which covers the situation arising and I do not ask for any further orders from the court today. Those instructions are set out in the report and, unless the court has some reason for believing that that account in the instructions is incomplete, it would not order further discovery and I am entirely happy with that.[75]That, in fact, I think, is the end of all of this, apart from the costs of today, and we say that we should have the costs of today sufficient to the protective costs order in any event, subject, of course, to the regime created by the PCO, and the costs not attributable to the PCO should be costs reserved to the trial judge.[76]MR SWIFT: My Lord, I would invite you to reserve the costs, effectively, and they will become the costs in the cause. As regards the protective costs order, the claimants were successful but not successful in relation to the order they sought. Having regard to the spirit in which the protective costs order is sought and made by the court, I say that it would be unusual for a cost order to be made. Simply, the costs should be effectively reserved to the end of the substantive hearing and the costs preceding, as a whole, will in all likelihood follow the event, subject, of course, to the protection afforded by the court.[77]MR JUSTICE BEAN: I think the costs of today relating to the protective costs order, which is the great bulk of today's costs, should be the claimant's costs in the cause. As to the remainder, such as they are, they should be reserved to the trial.[78]MR DRABBLE: My Lord, I do not know whether your Lordship or the Associate will indicate she wants assistance from us for the order.[79]MR JUSTICE BEAN: I suspect the answer to that is yes and I shall be around somewhere tomorrow, so I will happily look at and initial it. Would the parties please apply as soon as possible to the Administrative Court to try to get the date. I am sure you need no encouragement in the order. If you jointly think it is a good idea to put something in the order, directing you to do it within seven days, then do. If you think it is pointless, then do not.

order

but, as I read the judgment, if the five principles in paragraph 74 are satisfied, there is no sixth principle, for example that the issues must be of exceptional public importance.

Cited in 1 later judgment