Bovale Ltd v Secretary of State for the Communities & Local Government & Anor [2008] EWHC 2143 (Admin)

[2008] EWHC 2143 (Admin)Case No CO/5244/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 1st September 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
BOVALE LIMITEDClaimantv
Between
THE SECRETARY OF STATE FOR THE COMMUNITIES AND LOCAL GOVERNMENTDefendantHEREFORDSHIRE DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Palantype Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Timothy Sheppard (instructed by Messrs Martineau Johnson) appeared for ClaimantMr David Blundell (instructed by the Treasury Solicitor) appeared for First Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: There is before me what is in form an application to set aside an order made by Deputy Master Knapman on 20th August 2008 that the defendant file and serve any evidence and any alternative or additional grounds of resistance to those lodged by the second respondent, who has served an indication of the basis upon which it seeks to resist the claim, by 5th September 2008.[2]The history is this. The claim is made by a developer under section 288 of the Town and Country Planning Act 1990 seeking to quash a decision by the Secretary of State upholding a refusal of planning permission by the Herefordshire District Council, which is the second respondent in this case.[3]Claims under section 287 and 288 of the 1990 Act — now I think section 113 of the 2004 Act; there are similar provisions in the new Act which cover exactly the same ground — are to be lodged in this court. They do not require permission and accordingly they are not within Part 54, but fall within Part 8 of the Civil Procedure Rules ("the CPR"), being claims which seek the court's decision on a question which is unlikely to involve a substantial dispute of fact, or falls within paragraph (6) of Rule 8.1 which enables a Practice Direction to be issued requiring or permitting the use of Part 8 procedure for any particular case.[4]One of those that falls within the Practice Direction in paragraph 22 is an application relating to any decision or order or any action on the part of a Minister of the Crown to which section 288 of the Town and Country Planning Act 1990 applies, but also within paragraph 22.1 is an application relating to a structure plan, local plan or other development plan within the meaning of the Town and Country Planning Act, and that covers the local planning authority. However, there are cases that fall within either section 287 or section 288 in which the Minister is not concerned but the local planning authority is, which do not on the face of them appear to be directly covered by paragraph 22.[5]A defendant to a Part 8 claim must serve an Acknowledgement of Service not more than 14 days after service of the claim form:[6]The requirement under Rule 8.5(3) is that:
"A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service."
Thus, under the Rule there appears to be a requirement to file any written evidence within 14 days of service of the claim.[7]However, the Practice Direction 22.9 provides that:
"The respondent [for some reason the defendant is called the respondent in the practice direction] must – (1) file any witness statement in opposition to the application in the Administrative Court within 21 days after service on him of the applicant's witness statement; ..."
A witness statement should normally accompany the claim form, and has done in this as it would in almost all cases.[8]Accordingly, there is a general provision that the defendant or respondent shall serve any evidence within 21 days of service of evidence on him or her, which normally would be when the claim form is filed. I say "normally", because Rule 8.5(1) provides:
"The claimant must file any written evidence on which he intends to rely when he files his claim form."
[9]I suppose it is possible to envisage circumstances where the claim does not contain any witness statement and merely produces the documentation, although I am bound to say that, as far as I am aware, the normal practice is at the very least to have a formal statement from the solicitor producing the relevant documentary material. I suppose it is possible that no witness statement is served. If no witness statement is served there would I suppose be no apparent obligation on the defendant to serve any evidence in any particular time.[10]However, the reality is that in the vast majority of cases, and I suspect in all cases, in practice there will be a statement, if only a statement formally producing the relevant documents and so the 21-day time limit is triggered.[11]The problem has been that in these cases, section 287 and 288, all too often it is not until the last minute, usually when the claim has a hearing date, that the defendant gets round to preparing a defence because if there is no need to file a defence and if, as is often I fear the case, no regard is paid to the obligation to serve evidence, the court is faced with a problem that at the last moment material is put forward, whether by way of detailed defence or evidence or both. That creates problems, not only for the court but also for claimants and other interested parties, and is certainly not an efficient way of managing the court's business.[12]It was in those circumstances, and as a result of representations made to me by interested parties, that I decided that the time had come to make standard directions in order to attempt to meet this problem and to ensure that evidence and at least an indication of what the real issues were should be given at a reasonably early stage.[13]I confess that when I dealt with this, as I did in my judgment in Dinedor Hill Action Association v Herefordshire District Council [2008] EWHC 1741 (Admin), I had not had my attention drawn specifically to Part 8 and so I did not have in mind the requirements to serve evidence within a specified short period.[14]Before setting out in my judgment in that case what I considered to be the appropriate approach, I had a discussion briefly with a representative of the Treasury Solicitor, as is apparent from paragraph 34 of my judgment. I recognise that the Treasury Solicitor in particular, and I imagine local authorities too, must have the opportunity to discuss in the case of the Treasury Solicitor with the inspector in question, in the case of local authorities it may be with the chairman of the planning committee in question or the officer or officers who were responsible for the relevant decision. All that would take a little time. For the Treasury Solicitor, in particular, there is the general pressure of work, but also one has to recognise that inspectors are very busy. They will be dealing with inquiries and frequently not be in London or will be seriously engaged in a particular inquiry, and so there may well be a need for some time in order to enable the matter to be properly discussed. The point has been made, and properly made, that the Treasury Solicitor is concerned to give advice as to whether in his view the claim should be conceded. It is obviously in everyone's interests that that is done at as early a stage as possible, but having been given a reasonable time to enable the necessary information to be obtained.[15]In theory, no doubt, the position should be that the Treasury Solicitor or the local authority (or whoever is the defendant) when serving an Acknowledgement of Service, should make a specific application for an extension of time for the filing of evidence (if any). However, that seems to me to be a somewhat impractical requirement and also one which is capable of adding to expense, because it may be resisted and in any event it would require a specific consideration. Again, according to the Rules, if there is not service of evidence within the 21 days, the defendant is then precluded by the Rules from relying on any such evidence unless the court otherwise directs.[16]For private litigation that may be entirely reasonable, but it is something which in public law terms is in my view usually inappropriate. One has to bear in mind the obligation in public law cases to reach the right decision if possible, because of the potential effect that the matter has on others than the immediate parties to it.[17]It is utterly pointless, and indeed would be contrary to any sort of good administration, for the court to preclude itself from dealing with relevant evidence and then make a decision which is a wrong decision because that would only increase costs and may have a damaging effect upon the public. The difficulty, frankly, is that those responsible for Part 8 and the Practice Direction have failed properly to consider the special needs of the Administrative Court and the parties to claims such as this. I am afraid I am firmly of the view that the Rules and the Practice Direction are inappropriate, and do not satisfactorily deal with the situation in these cases.[18]So far as the evidence side is concerned, the defendant has indicated, through Mr Blundell, that she is not intending to serve any evidence in this case and so there is in fact no need for the order made by Deputy Master Knapman in that respect. It in fact does not affect her because if she is not proposing to file any evidence, it does not matter that she is directed to do so by 5th September. However, I am entirely satisfied that that part of the order is not needed and accordingly there is no point in maintaining it in being. Mr Sheppard on behalf of the claimant, for obvious reasons, has nothing to say so far as that is concerned.[19]The other aspect of the order relates to the requirement by the Deputy Master that any alternative or additional grounds of resistance to those lodged by the second respondent should be put in by 5th September.[20]Mr Blundell's main argument in that respect is that Part 8 not only does not provide for the lodging of any defence, but specifically provides that a defence is not needed. What is needed is an Acknowledgement of Service. I am told that it may be — and I am afraid I have not had the opportunity of confirming this — that the Administrative Court has indicated to the Treasury Solicitor, it may be to other defendants, I know not, in section 287 and 288 claims, that an Acknowledgement of Service is not required. If that has been a general dispensation, I am not entirely clear on what basis it has been granted because, on the face of it, it flies in the face of a specific requirement in Rule 8.3(1), which obliges a defendant to file an Acknowledgement of Service and to do so within 14 days. But all that the Acknowledgement of Service has to do is to indicate whether the defendant contests the claim and, if the defendant seeks a different remedy, to set out in the claim form what that remedy is. That will, I would have thought, not be likely to apply in claims under sections 287 or 288.[21]With respect to those responsible for Part 8, I am bound to say that I find it difficult to understand why no more is required than that in an Acknowledgement of Service before this court. Indeed, I have some difficulty in understanding why no defence or no indication of the nature of any defence is required in cases generally. However, Rule 8.9, upon which Mr Blundell particularly relies, states, so far as material:
"Where the Part 8 procedure is followed - (a) provision is made in this Part for the matters which must be stated in the claim form and the defendant is not required to file a defence and therefore - ... (ii) Part 15 (defence and reply) does not apply; ..."
[22]The obligation in the order to file alternative or additional grounds of resistance to those lodged by the second respondent is, Mr Blundell submits, although the language may not be defence, in reality a defence. However one dresses it up, whether one calls it "summary grounds", whether one calls it "grounds for resistance", in reality what it doing is to do what Rule 8.9(a) says need not be done; that is to say, require a form of what is equivalent to a defence to be filed.[23]The obligation under Part 54 in judicial review cases is that a defendant's or interested party's Acknowledgement of Service should "set out a summary of his grounds" for contesting the claim. That is the wording used. It seems to me that, on its true construction, Rule 8.9(a) is indeed referring to a defence and a defence is, as Rule 8.9(a)(ii) makes clear, a defence which would otherwise be covered be Part 15. Part 15 sets out the detailed requirements that are needed for a defence. It is not suggested that that be filed, nor would it in my judgment be appropriate for the court to be faced with any application for any further particulars of whatever is lodged. But what is required, in my view, and what should be required is at the very least an indication by the defendant of the grounds of resistance. It may in an individual case be that the defendant says that a particular ground is accepted, but even if established it could not make any difference to the decision or that there was no prejudice to the claimant in the decision that was reached. However, in any event it is surely desirable and sensible that the explanation for the decision to resist is set out in as short a form as may be appropriate, at as early a stage as is reasonably possible, so that the claimant, and indeed all parties, can focus on the arguments that are going to be material before the court and the court is then assisted by knowing what the position is in that regard and in assessing how long the case is likely to last, and accordingly can exercise its powers in an appropriate and most cost-effective manner.[24]The general powers of case management are contained in Part 3. Rule 3.1(2) provides that:
"Except where these Rules provide otherwise, the court may - ... (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective."
The overriding objective is in Part 1, which is to enable the court to deal with a case justly.[25]As I have said, in my judgment Rule 8.9 is not, for the reasons I have indicated, a Rule which provides otherwise because what Rule 8.9 is considering is a formal defence, not an indication of the grounds for resisting the claim that is being made.[26]Thus, I am against the defendant in respect of the argument that the court has no power under the Rules to give directions as to the service of such a document. In my judgment, there is every good reason why that requirement should be made.[27]Mr Blundell says, "If nothing is said, then it can be assumed that the Secretary of State is going to dispute all the grounds that are made." That is an assumption that can I suppose be made, but it is a somewhat unhelpful approach. One may go to the grounds raised in this case, just as an example. What is said is that the inspector, for example, failed to understand or even consider the agreed existence of currently available employment floor space and that he failed to understand or take into account the applicant's evidence as to the crucial distinction between costs and so on. It surely would be helpful, if necessary in one sentence, for an indication to be given as to why that is wrong because, for example, in paragraph whatever it is of his decision the inspector clearly does deal with this matter and paragraph whatever it is indicates that he clearly had in mind the relevant matters. This will be able to be known from discussion with the inspector, which one would expect to take place when instructions are taken by the Treasury Solicitor. I am only giving this as an example. It seems to me that that sort of indication would be of obvious value because at least then everyone would know where the battle lines are drawn and it might save considerable effort and time in dealing with every possible construction of a particular matter. Obviously, each case will depend upon its own facts or, perhaps I should say, on its own assertions of unlawfulness. But as a general principle I am entirely satisfied that there is a need for orders such as this one made by Deputy Master Knapman as a general proposition and that there is power in this court to make them.[28]The one thing that is obvious and clear is that the timescales set out in the Practice Direction and in the Rules are far too short. It is quite unrealistic to expect the Treasury Solicitor, and indeed planning authorities, to take proper instructions within the time that is set out. It is incumbent upon those making claims under section 287 or 288 to do so within six weeks. This means that in many cases there will have been little, if any, advance notice to defendants to enable them to apply their minds to the matter at as an early stage as possible. There is no requirement, for example, for any pre-action letter as there is in judicial review generally.[29]Thus, the Secretary of State and the local planning authorities will frequently find themselves recipients of a section 287 or 288 claim without there having been any advance warning that it is coming or if there is any advance warning, it will have been very shortly before the claim is lodged. In those circumstances, it is clearly right that a reasonable time should be given to enable proper instructions to be taken.[30]What I said in the Dinedor case, in paragraphs 33 and 34, was that because of my recognition that a reasonable time would be required, generally speaking if a claimant sought directions that evidence should be lodged within a particular time, that time would be set out as ten weeks, which is longer than the 35 days provided for in judicial review because of the recognition that these claims are likely to come without any significant advance notice. It seems to me that as a general proposition it ought to be possible for the defendant, whether the defendant be the Secretary of State or anyone else, to obtain the necessary information within that period so as to enable them to decide what evidence, if any, that is to be served.[31]The court ideally should be in a position to deal with these cases within three or four months, but that is ideally. The pressures on this court are such that that frankly is not possible. This case is an example. The claim was lodged over a year ago, on 25th June 2007, and it is fixed for hearing on 13th October 2008. That I am afraid is all too normal a time lapse for the hearing of these claims. Indeed, it is quicker in my experience than some. But even if we bring it down, as I hope we will, it is difficult to expect that it will be less than about six months, certainly within the reasonable future. Obviously, if we do manage to bring the times down significantly we may to have reconsider what is appropriate for the obtaining of evidence. However, at the moment, I am satisfied that there should be a general indication that ten weeks will be granted. It may well be that in those circumstances that assumption can be made and that the Treasury Solicitor or any defendant will not have to make a specific application. It can assume that that is the situation. I put it that way round because, as I say, it seems to me that the general rule is that they are required to produce evidence within 21 days. In those circumstances, one looks at what I would regard as a notional application and I can assume, and the court will assume, that that application applies in each case and therefore everyone can know that what is expected is that any evidence comes in within ten weeks. Obviously, the earlier the better, but that seems to me to be a perfectly reasonable time.[32]The question then arises in relation to the indication of the grounds for resistance. In my view there is no reason why that should not be contemporaneous with the timescale required for any evidence. By then the Treasury Solicitor will have taken instructions, will have formed his view, will know whether it is a question of concession or not and will presumably know why the resistance is being maintained. I find it difficult to see what extra burden is imposed by requiring a short statement of the grounds for resisting to be served at that time.[33]However, Mr Blundell has submitted that there will be difficulties and that it would be inappropriate for me to make, as it were, a direction without enabling the Treasury Solicitor, and indeed all other interested parties, to make specific representations. He also submits that this is a matter that ought to be dealt with through the Rules Committee rather than by an individual decision by the lead judge of this court. I recognise the force of that and generally speaking, of course, all matters of practice ideally should be dealt with by the Rules Committee. But having said that, one recognises that it sometimes takes rather longer than one would hope for the matters to be dealt with and that the Administrative Court in a number of respects has its own special requirements, which I regret to say have not always been properly taken on board by the Rules and which are not reflected in the present Part 8 and the Practice Direction under it.[34]What I propose to do in those circumstances is to indicate that there will be an expectation until the matter is dealt with through representations and the representations are considered, that the defendants ought to think in terms of serving grounds for resistance, however short, within the same period of ten weeks. If they do not and there is a good reason for the claimants to think that they are likely to be prejudiced or there is a real requirement in the interests of proper case management for such a service and it is not done within ten weeks, then a specific application can be made to the court and the court will if necessary make such an order. In the meantime I shall make arrangements for representations to be made by the Treasury Solicitor, by someone who is enabled to put forward the interests of local planning authorities, by someone who is able to do the same on behalf of developers, who are obviously affected, and perhaps by a representative of the planning Bar as well.[35]I am not sure, is there any solicitors' organisation on the planning side specifically. I do not think there is, is there?[36]MR BLUNDELL: I do not think. PEBA is the Bar one?[37]MR JUSTICE COLLINS: PEBA is the Bar one, I know. It is not like ALBA, where the solicitors come in as well? No, well PEBA then is an obvious.... I hope that we can arrange for that to be done within as short a time as possible.[38]I shall also take steps to have this matter put before the Rules Committee, but it seems sensible to await the representations so that one knows what can be put to the Rules Committee, so that they can avoid taking extra time in finding out what the parties' views are.[39]As far as this claim is concerned, I have already said that the order in relation to the evidence is now unnecessary. So far as the grounds are concerned, the defendant, through Mr Blundell, has offered to produce a full skeleton argument somewhat earlier than she would otherwise be required to do. Mr Blundell submitted that she should be obliged to produce their skeleton sequentially, in the sense that it was for the claimant to produce it first and he urged upon me that that was the normal practice of the court.[40]It seems to me that where the defendant chooses not to put in any grounds for resisting and thus one assumes that the grounds as set out in the claim form represent the way in which it is to be put by the claimant, it must be for the defendant to put in the first skeleton. There is no point, as it seems to me, in requiring the claimant to put in a skeleton first. The claim form should and does set out, albeit it may be said in rather short form, the grounds upon which the claimant relies. Accordingly, I take the view that in this case, and I suspect in many cases, the obligation will be for the defendant to put in the first skeleton.[41]That can be done by the 22nd?[42]MR BLUNDELL: Yes.[43]MR JUSTICE COLLINS: By 22nd September and I so direct, and that means the claimant's response should be seven days thereafter, the 29th.[44]Mr Sheppard accepts, on the facts of this case and having regard to the time we have reached, that is sufficient in all the circumstances, albeit he has submitted that it was perfectly proper and appropriate to make the application that was made which led to Deputy Master Knapman's order, because it was far from clear precisely what the Secretary of State's approach was. This is particularly the case because the other defendant, the District Council, has put in at a relatively early stage its grounds for resisting.[45]I should add that even if I were wrong about the court's power and Mr Blundell's argument in relation to no requirement for a defence were accepted, there is nothing in the Rules that prevents defendants from putting in grounds for resistance and in my view there is every reason why they should do so, voluntarily if necessary. The sanction if they do not may be that if as a result extra costs have been incurred because of a last-minute indication as to what actually the issues were, the court has power under the costs rules to make orders which reflect that. It may well be that a defendant who does not voluntarily put in in an appropriate case an indication of what the grounds of resistance are may find himself deprived, if he succeeds, of some part of his costs or ordered to pay extra costs in given circumstances.[46]Finally, as I say, this was an application to set aside. I think technically the decision of the Deputy Master was one which was appealable and this should have been in the form of an appeal. I shall treat it as such. However, for the reasons that I have given, the appeal can be allowed and the order set aside.[47]MR BLUNDELL: My Lord, I am grateful for that order. That just leaves two issues. One I hesitate, because I would wait and see what your Lordship did in terms of the order, and that is in question of an appeal. In the abstract, if there were to be an appeal, as your Lordship would appreciate this is an important issue of principle (inaudible).

MR JUSTICE COLLINS: Yes, of course.

[49]MR BLUNDELL: That would be something we would have to approach the Court of Appeal directly about because that would be a second appeal, this being (inaudible).

MR JUSTICE COLLINS: It is a second appeal, is it not?

[51]MR BLUNDELL: Yes, exactly. So, my Lord, we would have to approach the Court of Appeal for that. Your Lordship has said that the appeal is allowed and the order of the Deputy Master set aside. Nonetheless, can I ask in the circumstances of the case that your Lordship does two things. First, that your Lordship extends time for appeal to the Court of Appeal from 21 days from production of the transcript in this case and, secondly, the consequences of that your Lordship orders an expedited transcript to be produced, given (inaudible).

MR JUSTICE COLLINS: You can certainly have a transcript, but you can pay for it.

[53]MR BLUNDELL: I thought --

MR JUSTICE COLLINS: I do not see why you should get it at the public expense.

[55]MR BLUNDELL: My Lord, I am grateful. (The judge consults the shorthand writer)

MR JUSTICE COLLINS: The shorthand writer will prepare it by the end of the week.

[57]MR BLUNDELL: I am very grateful to the shorthand writer for that. My Lord, in those circumstances, then the only thing for me to ask for is in terms of costs. Strictly speaking, your Lordship has said that the appeal succeeds. I notice your Lordship's raised eyebrow.[58]MR JUSTICE COLLINS: You are not going to get any costs, which is not very surprising. The only question is whether you should pay any, I think. You have lost on the point of principle that you were really fighting on.[59]MR BLUNDELL: We lost on the point of principle, we have won on the facts.

MR JUSTICE COLLINS: That is only because of the circumstances.

[61]MR BLUNDELL: My Lord, that may be so. Of course costs were reserved by the Deputy Master. In those circumstances, I would ask that your Lordship makes the same order.[62]MR JUSTICE COLLINS: I think probably that is appropriate. Wait and see how it comes out in the wash.[63]MR SHEPPARD: My Lord, I am going to make the application for our costs, on the basis that the circumstances of the current case, which has led to your ultimate order, are (1) the concession made in light of the concession that there would be no evidence served, which goes to the first of the --

MR JUSTICE COLLINS: They had not told you that in terms before?

[65]MR SHEPPARD: In terms, no. It was a result of the application and the order really that that was formalised certainly. I am not at the moment going to put it higher than that, and that is a --[66]MR JUSTICE COLLINS: I thought they indicated when you were chasing them that they were not going to serve any evidence.[67]MR SHEPPARD: I think there was perhaps — there is a letter of the 15th --

MR JUSTICE COLLINS: I am speaking entirely from memory.

[69]MR SHEPPARD: My Lord, the chronology is that we wrote firstly on 12th August. Now I hope the correspondence is at the back of the actual order that we made to the Deputy Master.[70]MR JUSTICE COLLINS: Hang on, I am pretty sure I have got all the correspondence. Let me just check.[71]MR SHEPPARD: My Lord, I can assist that the letter of 15th October from the Treasury Solicitors is of relevance.

MR JUSTICE COLLINS: 15th August.

[73]MR SHEPPARD: 15th August, rather.

MR JUSTICE COLLINS: Yes, I have that, "At present we have no intention to serve"....

[75]MR SHEPPARD: Indeed. There is no concrete position there.

MR JUSTICE COLLINS: That is true.

[77]MR SHEPPARD: And we then have a letter --

MR JUSTICE COLLINS: It is the words "at present".

[79]MR SHEPPARD: Indeed. We felt compelled, because of that reply, to make the application. The next correspondence on the record is 19th August, which essentially repeats the basis of the application notice before you today, but I do not, having briefly gone through it now, see that any concession is made. I do not think the point is made in that letter about evidence. It would follow, my Lord, that the actual formal concession is that made really today and resulting from that order, namely that there would be no evidence served. It would follow from that that it was because of our actions, pursuant to the practice direction and making the application, that we have got to that position.[80]MR JUSTICE COLLINS: I think I would have upheld the Deputy Master's order in relation to evidence if there was still a question mark as to whether evidence might or might not be produced.[81]MR SHEPPARD: That is the position.

MR JUSTICE COLLINS: One would have to delete "at present", as it were.

[83]MR SHEPPARD: Indeed, but on the face of it there has not been the concession that was necessary and we had it today, and it because of that, essentially, that I was not pushing to uphold that part of the limb, and I understand that that was the position that my learned friend was taking. It would follow for the purposes of costs that we would in effect have succeeded on that limb.[84]Turning to the second limb, I have made, in the interests of saving time and expense, a concession that we do not pursue the full terms of the order, but in light of another concession from my learned friend that they would actually serve their skeleton early. In effect, I submit that we have won on that ground because the principal purpose, and it is set out, it is writ large as the basis of the original application, we wanted to have sight of those summary grounds before we had to draft our skeleton. For the reasons that your Lordship made, not just in terms of the broader principle --[85]MR JUSTICE COLLINS: It is true, I put it the other way round; that they have to provide the skeleton first, so you are not in the position that you are prejudiced.[86]MR SHEPPARD: My Lord, to that extent I would suggest that in a sense you have upheld the spirit of the order, certainly.

MR JUSTICE COLLINS: I see the force of that.

[88]MR SHEPPARD: For those two reasons, because they are concessions made just within the facts of this case but in light of points made today, overall it is quite clear that on the broader points and the specifics I would say that we have won and we are entitled to our costs.

MR JUSTICE COLLINS: Yes.

[90]MR SHEPPARD: Not just of this hearing but of making the application originally, because it was that letter of 15th August where there was a total refusal to deal with the matter and your practice direction that has led to these events.

MR JUSTICE COLLINS: I see the force of that.

[92]MR BLUNDELL: My Lord, may I just respond to those costs submissions. In terms of the letter of 15th August, the position is, as the Secretary of State set out, that we intend to rely on the evidence contained in the core bundle. I appreciate, my Lord, the paragraph does begins with "at present", but the Secretary of State does go on then to say we are relying on the core bundle. My Lord, then when one goes to the letter of 19th August, the Secretary of State says this in paragraph (b), second sentence, second line "at present, based upon the claim as filed." My Lord, in my submission it is quite clear that what the Secretary of State is doing there is saying, "There is no intention to file any more evidence based on your claim as it is. If you amend in the some way, if you seek to raise anything new, if it not be in the skeleton or whatever, then we reserve the right to respond to that." My Lord, that is the position as regards the evidence.[93]As regards the order and the skeleton arguments verses the summary grounds, in my submission, my Lord, we have won on the facts. I accept we have not won on the principle, that is quite clear. But we have won on the facts --[94]MR JUSTICE COLLINS: You have and you have not. I have reversed what you consider to be the appropriate order for the skeletons, and that really gives the claimant what it wants.[95]MR BLUNDELL: My Lord, of course one has to look at what they got in the first place. The order was that we had to do a skeleton anyway and we had to do summary grounds of defence by Friday, in four days' time. My Lord, in my submission it is a classic case where the appropriate order is that costs be reserved.[96]MR JUSTICE COLLINS: No, I am persuaded, Mr Blundell, for the reasons put forward by Mr Sheppard, that this is a case where he ought to have his costs of the application, both before the Deputy Master and before me. It seems to me that it was not clear that the intention of the Secretary of State was not to serve evidence, certainly in the letter of 15th August. True, in the letter of the 19th, once the application notice had been filed, the indication was given that as the claim stood there was no intention to served evidence, but of course by then the application had been made and it was dealt with, I think I am right in saying, on the papers by the Deputy Master. So she had regard, I imagine, to the letter of 19th August, which must have been before her when she made the order. Whether it was strictly in those circumstances necessary, I am not sure. But certainly it had not been made as clear as it ought to have been that, before then, there was no intention of serving any further evidence.[97]So far as the other aspect is concerned, the major contention put forward by the Secretary of State was that the court had no power to do what the Deputy Master had done. It is true that at the end of the case I was able to find that there was no need for the order of the Deputy Master to remain in being, partly because of the timescale, but partly because I decided that the defendant should in the circumstances — and I have given the reasons for that in the judgment I have given — produce the detailed skeleton before the claimant was required to do so. That is said to be, and it may well be, contrary to the normal practice that has been adopted in these cases hitherto, and certainly the practice that the Secretary of State considered to be the one which would be followed.[98]It seems to me in those circumstances that by taking these proceedings, by making this application, the claimant has succeeded in achieving in effect what it wanted to achieve. It seems to me in those circumstances that it is appropriate to require the Secretary of State to pay the costs of this application and the appeal before me, to be the subject of detailed assessment if not agreed.[99]MR BLUNDELL: I am grateful, my Lord.[100]MR JUSTICE COLLINS: Incidentally, if you do take this matter further, it clearly cannot have any effect upon the substantive claim, so there is no reason, as I can see, why the substantive claim should not go ahead in any event. I suppose the only possible consideration is that if the claim goes ahead and then is disposed of, it may be said there is nothing left for the Court of Appeal to consider. You have also the problem that you have in form won, although that does not I think preclude you from appealing if you have won on the wrong basis, as it were. But there is that, and it may be that the Court of Appeal could be persuaded that, albeit the point was in a sense academic, it was one which they ought to deal with.[101]MR BLUNDELL: It is something which I think the Treasury Solicitor will want to study.[102]MR JUSTICE COLLINS: But the important thing is that any possible appeal on this issue must not affect the hearing of the substantive claim. I shall make that direction, if necessary, so that that is absolutely clear.[103]MR SHEPPARD: My Lord, I would ask you to make that direction.

MR JUSTICE COLLINS: You would, I think, recognise and accept that.

[105]MR BLUNDELL: My Lord, of course. I have no instructions to resist that.[106]MR JUSTICE COLLINS: I will, as I say, make that clear. Thank you both. I am sorry it has taken a bit of time, but it was quite an important issue and we will see what happens.

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