Lower Mill Estate Ltd & Conservation Builders, R (on the application of) v HM Revenue & Customs [2008] EWHC 2409 (Admin)

Case No CO/4721/2008

[2008] EWHC 2409 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 19 September 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE BLAKE

Between

THE QUEEN ON THE APPLICATION OF LOWER MILL ESTATE LIMITED AND CONSERVATION BUILDERSClaimant

Between

COMMISSIONERS OF HER MAJESTY'S REVENUE AND CUSTOMSDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr J Peacock QC and Mr J Maugham (instructed by Rowel Genn, London EC1N 8EH) appeared for Claimant

Mr M Gammie QC and Mr V Sachdeva (instructed by HMRC) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE BLAKE: This is an application of judicial review on behalf of the claimants, the Lower Mill Estate Limited and Conservation Builders Limited: two distinct companies that have connections in terms of their ownership and directing minds. The application concerns liability to VAT of a set of business transactions that resulted in the provosion of land ultimately with provision of land for the purpose of building holiday homes, and the development of that land, for holiday homes where one company, or the other, is going to make relevant supplies to purchasers of such homes.

[2]The essence of this application is that when the business was being established the claimants employed a VAT consultant who made approaches to the relevant members of the Commissioners' staff for VAT assessments in 1998 and 1999, at least, for the purpose of seeking clarification as to whether VAT, at a standard rate or a zero rate was due on certain of the transactions that certain of the two claimant companies were going to be performing.

[3]The claimants' case is that on 4 September 1998 the defendants, upon a sufficient degree of disclosure of the position, gave a clear ruling that the legislative position was such that the transactions in question were not subject to a vatable charge because they were zero rated. It is suggested that following further discussions, and a further consideration by a different officer in 1999, that position was expressly confirmed orally, and in writing, in July 1999 that the particular development in question would qualify for zero rating. Although that last written confirmation was followed by a letter of 12 August 1999, indicating that the companies took that as final clarification of the matter and invited final confirmation of that understanding, nothing was done to disabuse them of such a conclusion in the rest of that year, and the rest of 2000, 2001, 2002, 2003, and 2004. In 2005 the issue seemed to re-emerge again, although when it was pointed out that these representations had been made that approach was withdrawn and the matter again goes into the long grass for a period.

[4]The claimants also indicate that it is not merely a silence following the last letter, but the way that the Commissioners went about making the interim assessments when they had access to the relevant documentations, all of which, it is submitted by the claimants, gives rise to a legitimate expectation that they did not have to raise vatable invoices, with standard rate VAT, for the particular transactions that were contemplated.

[5]In February 2008, the Commissioners, having further investigated the matter, raised notices of assessment that date back to a period of vatable assessment in 2005, and they claimed VAT due upon the transaction from 2005 onwards. The claimants submit that to do so, essentially claiming back tax in respect of activities where a clear and unambiguous ruling had been given that no standard rate VAT was due, is unfair and a breach of a legitimate expectation in the general meaning of public law and, in particular, in breach of a long-standing indication in the field of revenue law, dating from 21 July 1978, when Mr Sheldon, the responsible Minister, said:

"When it is established that an officer of Customs and Excise, with the full facts before him, has given a clear and unequivocal ruling on VAT in writing; or it is established that an officer knowing the full facts has misled a trader to his detriment, the Commissioners of Customs and Excise would only raise an assessment based on the correct ruling from the date the error was brought to the attention of the registered person concerned."

[6]It is submitted that all the necessary qualifications for inclusion within that principle are met here. There was full disclosure of the material details of the transaction. There was an unambiguous ruling and there was no prior intimation that that ruling would be departed from, or considered an error, until the claims for tax in February 2008.

[7]The Commissioners, in response, dispute each of those three necessary elements before the general law will imply a legitimate expectation. They submit that there was no unqualified and unambiguous representation. It was not based upon full disclosure of the material facts. Further, they submit that the position now is that there is a principle developed in VAT law that would apply to disapply any legitimate expectation from one of a number of potential dates, depending upon the facts.

[8]The decision, to which reference is made, is the decision in the case of Halifax plc and Others v the Commissioners of Customs and Excise, 21 February 2006, the decision of the European Court of Justice where the Court of Justice gave guidance as to the common interpretation of the VAT Directive and held, in its second holding, that:

"... the Sixth Directive must be interpreted as precluding any right of a taxable person to deduct input VAT where the transactions from which that right derives constitute an abusive practice."

There is clear guidance given in that case as to what constitutes an abusive practice.

[9]The claimants deny that they are, on the true facts, liable to standard rate VAT on the transactions in question. They deny that it is an abusive practice, but in addition they submit they, having placed their cards fairly and squarely on the table, were unambiguously led to believe what the true rate of VAT was upon these transactions, namely zero rated. They have not raised VAT invoices to customers and now to be hit by a very considerable demand for VAT for the period 2005 onwards is a fundamentally unfair and manifest abuse of power.

[10]I have so far described the rival contentions of the two claims. I now turn to the particular issue that has troubled the court this morning. When this application for permission was first considered on the papers, on 18 June 2008, by Cranston J, he refused permission on the basis, among other things, that the claimants should pursue an appeal that they had lodged with the VAT Tribunal: first, because there is a general principle that one should exhaust alternative remedies before having recourse to judicial review which is a matter of last resort. Secondly, the disputed facts that would determine whether there has been full and frank disclosure by the claimants can only really be decided by this court after the relevant primary facts have been determined by the VAT Tribunal. The facts would fall to be determined within the jurisdiction of the body that can hear oral evidence and decide if there is a conflict of oral evidence, whose account is to be accepted, and what inference is to be drawn from the relevant exchanges, and so on and so forth.

[11]The claimants renewed the application for permission and the matter came on before Goldring J on 21 July 2008. I have been supplied with the transcript of that hearing and there was a vigorous debate as to whether it was appropriate for the judicial review matter to abide by the hearing, or to follow, rather than to proceed to the hearing of the statutory appeal. In the end his Lordship was persuaded, though it appears not by a completely clear margin and not free from doubt, that on the basis of a recent decision of the Court of Appeal permission should be granted.

[12]The recent decision of the Court of Appeal, to which reference was made, was the decision of R (on the application of) Davies and Another v HM Revenue and Customs

[2008] EWCA Civ 933

, handed down on 10 July 2008. Some eleven days before Goldring J granted permission in this case. It is not immediately apparent whether he had a full transcript, or some other report, of the judgment. In the case of Davies this was a tax appeal, as opposed to a VAT appeal, but the taxpayer contended that they had a legitimate expectation that their arrangements were not liable to UK tax, because they were not resident within the United Kingdom for the relevant tax year.

[13]Their contention that they had such an expectation was based on their reliance upon long-standing revenue guidance notes: IR 20 residents and non-residents. The claim for judicial review was that the Revenue in those guidance notes set out a bright-line criteria for non-residents that the claimants complied with, therefore it would be wrong for the Revenue to depart from the test and the apparent satisfaction of the test, so say the claimants, set out in the guidance notes. They therefore sought judicial review, although they had also lodged, as they were entitled to do, an appeal to the Special Commissioners.

[14]The matter came before this court for the grant of permission. Stanley Burnton J, as he then was, adjourned the judicial review on the basis that the appeal should be exhausted first. The claimants appealed against what was a case management order to the Court of Appeal. Their submission was that if the appeal was to proceed and the true facts revealed, that the claimants were indeed continuing to be resident for the relevant tax year in the United Kingdom, that would destroy the case for judicial review since there would be very real doubt as to whether the Commissioners would be entitled not to pursue the tax that was indeed due.

[15]On the basis that there was a real risk that failure to enforce the tax claim, or to pursue it, would be ultra vires of the Commissioners' power, Hughes LJ accepted that that line of authority might undermine the application for judicial review and raised a serious obstacle to the subsequent conduct of the judicial review claim. Secondly, he concluded, on the particular facts, that he was not convinced that the determination whether the claimants had left the United Kingdom would not pre-empt the judicial review claim, given the centrality of the question of leaving the issue to be determined by the commissioners of whether the claimants are resident or not. Keene LJ at paragraph 24 concurred with Hughes LJ on the first limb, namely the doubt as to whether legitimate expectation could operate where it would conflict with a statutory duty to collect tax.

[16]On the basis that Davies certainly made it arguable that it was therefore wrong to adjourn for the VAT appeal to be determined, Goldring J granted permission. The matter was expedited, pursuing to his directions, because the uncertainty as to the liability to VAT in a very large sum of money, for the period from 2005 to 2008, was causing very considerable commercial risks to the whole enterprise with which the claimants were concerned. They risked losing a major investor at a time when investors and credit were not at all easy to attract in the light of underlying financial circumstances.

[17]The case, therefore, came on for argument before this court today. I have been confronted in the skeleton arguments with essentially a preliminary issue between the parties who, notwithstanding their mutual submissions on the substantive merits of the judicial review, are also at odds as to what case should come first. I have no doubt that but for the principle adumbrated in Davies, the sequence of the statutory appeal first, and judicial review second, might prevent judicial review being granted, when otherwise it ought to have been granted. This would be a case where every other indicator would support the instincts both of Stanley Burnton J in the kind of case that he was dealing with in Davies, and more particularly Cranston J in his consideration and permission. Indeed the Court of Appeal in Davies itself makes it plain that the normal course in such matters is for the facts to be decided by the statutory appeal before judicial review is invoked. (I refer to paragraph 7 of the judgment of Hughes LJ)

[18]Here that normal course seems to be reinforced by the following considerations: if the claimants' contentions on the law are right as to the nature of the companies, and the transactions, then they are not liable to tax either from 2005 to 2008, or from 2008 onwards, and they will need to decide that question for future liability. They do not claim that the legitimate expectation can survive the decision of February 2008, which is unambiguous as to what the Commissioners now say the tax liability is. Therefore we are only here concerned with the doctrine of legitimate expectation protecting a back claim to tax in the event that the claimants do not succeed in their appeal on the merits.

[19]However, whether legitimate expectation is ultimately to be decided in the claimant's favour would materially depend upon whether they put before the Revenue all information that was required for a full and frank disclosure to prompt the ruling. That again depends upon the material facts as to what was really going on, who knew what was really going on, who therefore knew, or ought to have known, what facts were material for the Revenue to give an authoritative ruling, and matters of that sort.

[20]It seems to try to grapple with those issues on this application for judicial review would be extremely difficult and might itself prejudice the function of a tribunal whose fact-finding jurisdiction is much more attuned to the relevant determination of facts than this court is. My reading of the present case demonstrates that there are a whole host of opportunities where there is scope for intense debate as to whether the Revenue were fully made aware of all they needed to be for the public law doctrine of legitimate expectation to be engaged. Those requirements have been laid down by a number of very familiar authorities, particularly in the Revenue field. One only refers to R v Inland Revenue Commissioners, ex-parte Preston

[1985] AC 835

, R v Inland Revenue Commissioners, ex-parte MFK Underwriting Agents Ltd and Others [1990] 1 WLR R v Inland Revenue Commissioners, ex-parte Unilever

[1996] STC 681

, and there are many others.

[21]Therefore, upon the start of this case being called on I invited the counsel to address me again on the question of whether, now permission has been granted, the hearing of this application should be stayed so this court would have the advantage of relevant findings of fact. Mr Peacock QC submitted, as had been submitted before Goldring J, that really the principle in Davies was engaged in exactly the same way in this case as it had been in that case. He recognised that he could not rely upon Davies for the proposition that wherever there is a statutory right of appeal, and a claim of legitimate expectation made by the claimants, that they should not be vulnerable to paying tax, and that the judicial review must always come first regardless of the circumstance. As I indicated, that does not seem to be the Court of Appeal's approach.

[22]I have to say, looking simply at the decision in Davies, I am a little perplexed as to what it was that the Court of Appeal thought that the Revenue may not have had power to do, thus preventing the doctrine of legitimate expectation being engaged, even if the taxpayer was proven ultimately to be liable to tax. As I read the authorities, and as indeed I read Mr Sheldon's statement way back in 1978, the whole doctrine of legitimate expectation is of benefit, and only real value, where, on a true understanding of the facts and the law, the taxpayer is, or may well be, liable to tax. Despite that, however, it would be oppressive or unjust, or a conspicuous abuse of power, to require him, or her, to pay the tax because the conduct of the tax authorities, in the exercise of their management of powers, has legitimately created the belief that tax would not be payable for a particular period, for a particular reason.

[23]It seems to me apparent, first, that the Revenue do have the power, in the exercise of their management of the tax statutes, to give indications or rulings as to whether or not a VAT invoice should be rendered at all, and at what rate the tax should be charged upon that invoice; whereas Davies was a case about income tax and capital gains for a period of alleged residence, and the issue is whether the tax payer was a true resident in the UK at that particular period of time.

[24]The present case concerns VAT where, it seems to me, issues of policy make it even more important that the taxpayer should be able to enquire, and rely upon soundly the unambiguous representations from the Commissioners as to whether they should have charged VAT in respect of their transactions. If a transaction is a transaction to which standard rate VAT is to apply, the taxpayer needs to know that at the time he, or she, renders supplies and invoices to clients, and to others with whom they have business transactions. It will be too late to retrospectively claim that tax back from others, many years after the event, when the invoices were not so rendered and the whole commercial transaction was based upon an understanding that tax was not payable.

[25]Therefore, the fact that there are third parties affected by the transaction, and the taxpayer would normally have been able to pass on any tax that it was due to that third party, makes it even more appropriate that unambiguous representations can be relied upon. If the relevant foundations are made out on the facts, there would be a strong case of abuse of power to permit the commissioners to depart from their representation with retrospective effect here. The tax in dispute was for the periods before February, there being no dispute that they may be entitled to make a fresh decision, subject to the appeal, for the periods after February 2008.

[26]Nevertheless, it is apparent that there are cases which have raised the doctrine of expectation where it has been successfully contended that the relevant tax authorities had no power to do that which gave rise to the expectation. I have been helpfully provided by Mr Gammie QC, who appears today for the defendant Commissioners, with an example of such a case, namely Al Fayed and Others v Advocate General for Scotland

[2004] STC 1703

. A deep penetration of the facts in that case is not necessary for my present decision, but it concerned an agreement made between the taxpayer and the Revenue for forward tax payments. That is to say, without conducting a proper assessment of the taxpayer's position, forward tax agreements were made that the taxpayer would not have to pay more than a certain sum. That was a bargain reached between the Revenue and the taxpayer.

[27]It was held that the Revenue had no power to make such forward tax agreements. They were, in the particular circumstances of that case, ultra vires. Once the Revenue had come to the conclusion that it had no power to do so it was unable to bind itself, or exercise a discretion, not to investigate the matter and raise the tax that was in fact found due in that case.

[28]That seems to me to reflect the principle that the public authority must not be acting ultra vires when making the representation that is relied upon. There is no dispute that the Commissioners can give tax rulings and issue general tax guidance. It may be that in Davies the issue was a little different from the case before me, because there was no express representation to the taxpayer by the tax authorities that on the particular circumstances of his, or their, case (there being two taxpayers in that case) that a genuine pre-assessment was made upon proper disclosure that tax was not payable. All that the taxpayer was relying upon was the impact of general guidance. There was power to give the general guidance, but it might be argued that once it transpired that the real issue was whether, indeed, the taxpayer was resident at the material time, the general guidance could not determine that issue and must have been known not to be capable of determining that issue. Therefore, there would be very little room left for a legitimate expectation once the true question had been decided upon its facts.

[29]Whatever the basis for distinction, I am satisfied that in this case the exceptional course promoted, as a result of the successful interlocutory appeal in Davies, does not destroy the legitimate basis of any case which the claimants may have, to return to this court to uphold a claim of expectation if their primary submission as to whether tax is payable is unsuccessful on appeal.

[30]I reach that conclusion, first, because of the fact that this is a case of alleged express representation made to the taxpayer about what they should put into their invoices, rather than general reliance upon a guidance leaflet. Secondly, because the context is Value Added Tax and the requirement of rendering the invoice to a third party, if a standard rate tax was indeed due, as a result of the historic events needed to be clarified at the outset. That is a difference from the issues in Davies.

[31]Thirdly, the law of legitimate expectation, in my judgment, precisely applies when it would be unfair to enable the Revenue to collect, or enforce, the collection of taxes where they have given such a specific representation to the contrary. That cannot be defeated by merely a confirmation of that which is implicit by reliance upon legitimate expectation, namely that but for the representation the tax would otherwise be due. It would empty the Sheldon statement, and the subsequent case law of legitimate expectation, of much of its utility, if that were the case.

[32]Fourthly, I am wholly satisfied that the Revenue did have power to give the rulings, which the claimants say were given in this case, and, for reasons already explained, they really had to give some guidance on this scheme in order for the taxpayer to set up the appropriate invoicing arrangements a long time ago. This is not simply a case of representation in writing and orally, but also by what happened over the lengthy period from 1999 to 2007 when business was being conducted in accordance with what the claimant said were unambiguous representations.

[33]Finally, the findings of fact in the statutory appeal, far from destroying the efficacy of the judicial review, such fact finding may very well be decisive as to whether there was an expectation at all, rather than whether an expectation, that once existed on the facts, could be enforced in the face of an adverse tax ruling. I make no further penetration of the disputed facts in this case. It seems to me that both sides had points to make as to the nature of these transactions, whether or not it came within the Halifax doctrine, and whether, even if it did, the whole point about rulings is it that they give protection against unforeseen changes in the law with retrospective effect. All those matters will be assisted once the court is aware of what the true nature of the transactions are and were, and that, in my judgment, is critical to knowing whether there has been sufficient disclosure to engage the doctrine in the first place. Without that the court would be moving somewhat blindly in a sensitive field of public law administration.

[34]This is not a case, perhaps contrast to Davies, where it is simply a debate about whether the guidance notes from the Revenue were so clear and conclusive as to be a complete answer to liability on a freestanding basis. Here expectation and legitimacy of any expectation, and the primary facts as to the nature of these transactions, are all intimately bound up. I conclude, therefore, that notwithstanding the particular decision in Davies, this is not a case where judicial review would be rendered nugatory by adjourning the application, and every other indication in the case is that that is the most sensible and appropriate course to adopt. I therefore do so.

[35]I appreciate that the claimants are anxious that the statutory appeal should not be prolonged. It is not, of course, for me to dictate to the Tribunal when it should hear its appeal, or how it should organise its lists, but in my judgment there is particular good reason why everything should be done to accommodate this appeal as soon as possible. I understand the parties consider that a time estimate of between 3 to 5 days is probably going to be needed to dispose of all the issues that will arise in the appeal. It may be that late November or early December is the first practical opportunity that the Tribunal may have.

[36]I would simply urge that the Tribunal do afford, within whatever ranking of priority they have to apply, particular consideration to early consideration in this case for the following reason: I am conscious, despite Goldring J's request for expedition, that the issue of which order a judicial review claim or the statutory appeal should be taken has proven a difficult one for this court. To some extent, the claimants could legitimately say the court has reached different conclusions, at different stages, in the process. The court itself has some obligation, as a public authority, to move to a speedy determination of what are undoubtedly extremely important issues for the claimants' company.

[37]I regret that my decision today has left the judicial review on the merits unresolved. However, I have no doubt that if it was open to me to adopt the course which I have adopted, that was the preferable course, but it simply adds to the need for expedition that the claimants have been alerady delayed in the resolution of the case for the past few months. I would invite that to be drawn to the attention of the Tribunal when the matter is listed. For similar reasons it seems to me, though I make no direction about this, that if a date is available then it is the availability of the date that should take preference, rather than the particular availability of distinguished counsel whose diaries are doubtless extremely busy, as one might expect.

[38]For those reasons, I adjourn this application for judicial review upon the terms that it can be restored when the Tribunal have determined the appeal, but I do give liberty to apply in case unforeseen circumstances frustrate the intention of the court.

[39]MR GAMMIE QC: I was going to say that I would ask for costs, in relation to today's proceedings, on the basis that this is very much the course that we have urged from the outset.

[40]MR J PEACOCK QC: My Lord, I was just about to rise and ask for costs as well. There has been over the last week, or ten days, correspondence between the parties that was, without prejudice, save as to costs. Your Lordship will be shown that correspondence in a moment, if need be. We had concern, not that your Lordship would do what your Lordship has done, but that maybe one day was not going to be sufficient. Mindful of that, my client was concerned about the speed of the resolution of the debate entirely. What we have proposed to the defendants was that if they were content to make themselves available, and do everything to facilitate a speedy hearing before the Tribunal, a way forward would be for this application to be stayed, and for the parties to concentrate on a prompt hearing before the Tribunal. We had in mind, at that stage, October or November. That came to nothing because the Commissioners were not prepared to undertake to make counsel available without limitation. I can show your Lordship the correspondence in a moment.

[41]MR JUSTICE BLAKE: If we are moving into the world of costs, without prejudice to correspondence, regarding your limited jurisdiction, which I confess I have not dealt with expressly, it follows from my judgment I was not impressed that I should be limiting what the Tribunal should do at the appeal. That was not part of the offer.

[42]MR J PEACOCK QC: It was, but yes there would be a hearing that would resolve all issues. The Tribunal would do everything, apart from take the last step, which would be to confirm, or not confirm, the assessments.

[43]MR JUSTICE BLAKE: I have not limited what the Tribunal should do at that step. It may well be if that is a material part of the offer that that proposal was not accepted and you have not won.

[44]MR J PEACOCK QC: The substance of your Lordship's conclusions this morning are, in effect, what we offered to the defendants some ten days ago.

MR JUSTICE BLAKE: Save for the condition of the limited hearing, as opposed to--

[46]MR J PEACOCK QC: There is no difference in the practical outcome because the Tribunal's hearing will not be any longer, nor will it be any quicker or slower. It may be your Lordship does not want to resolve this just now. It may be we could leave costs to be resolved at a later date. We would seek, at some stage, it does not have to be now, to put this question of costs.

[47]MR JUSTICE BLAKE: I am conscious that it is going to be time to adjourn, unless we are going to deal with this in the next five minutes, which I rather suspect not on the correspondence.

[48]MR J PEACOCK QC: It may be your Lordship would prefer to leave costs unresolved and then we can see what happens in the Tribunal.

MR JUSTICE BLAKE: You want your costs, in any event?

[50]MR GAMMIE QC: Yes, on the basis that these proceedings would not have been necessary had we proceeded as the Commissioners sought to do from the outset.

[51]MR JUSTICE BLAKE: It seems to me provisionally, Mr Peacock, that is right. There was this preliminary issue which has emerged in different ways. The Commissioners were saying, "You have not got a legitimate expectation, in any event, but even if you did we would need to see what the Tribunal said before that could be clarified. Therefore the appeal will be first and JR, if at all, later." Unless you are really saying that the whole of that was subject to a Part 36 offer, one without prejudice to correspondence (I am going to have to read carefully), I think probably it is a case for an order of the costs of today's hearing, rather than just costs reserved.

[52]MR J PEACOCK QC: There is this additional factor, that had we been having this debate before Goldring J one might form a different view. Our respective learned juniors had this argument and we succeeded in July. In those circumstances, it must be open to us to pursue the application for which we got permission. We quite accept your Lordship has taken a different view.

[53]MR JUSTICE BLAKE: I did not notice any part of your argument was that I could not re-entertain this debate because I was bound by Goldring J. I appreciate he found it arguable and granted permission. You still have permission. I have not denied you permission, or revoked it. I would not attempt to do so. It is just a question of having looked much more fully, with the assistance of you both, at what we do.

[54]MR J PEACOCK QC: Given that Davies was part of that debate, and I submitted to your Lordship that your Lordship was bound by the Court of Appeal, and your Lordship concluded he is not, in those circumstances to say that the defendant should have the costs of today, even without looking at the correspondence, is, in my submission, not the appropriate course.

[55]MR JUSTICE BLAKE: I have the transcript of the hearing. I have the ruling somewhere.

[56]MR J PEACOCK QC: It is in volume 3, tab 13 at page 729.

[57]MR JUSTICE BLAKE: We do not have the transcript. Did he give a judgment granting permission?

[58]MR J PEACOCK QC: It is at the end of the transcript. Your Lordship perhaps has it in mind. There are ten lines, or so, at the end of the transcript.

MR JUSTICE BLAKE: At the moment I only have the proceedings in front of me.

[60]MR GAMMIE QC: I can hand it up.

[61]MR JUSTICE BLAKE: I probably misfiled it, or something. (same handed) I have this. It is not paginated, which is the problem. The very last page: "I am prepared, I am sorry..." is that the ruling?

[62]MR J PEACOCK QC: No, four pages back. That was a separate dispute about amendments and disclosure.

MR JUSTICE BLAKE:

"The case is arguable. For that reason I grant permission."

It is arguability.

[64]MR J PEACOCK QC: Your Lordship, my learned friend's skeleton has sought, in the alternative, that his private case was that this matter should be dismissed.

[65]MR JUSTICE BLAKE: I appreciate that. I am going to rise. I think this is going to go on too long. Do you want me to look at the correspondence, or is that material part of your application?

[66]MR J PEACOCK QC: Yes.

[67]MR JUSTICE BLAKE: If I have looked at it are you content for me to give a ruling on costs in writing, or do you want to come back at 2 o'clock?

[68]MR J PEACOCK QC: For our part, we are content in writing.

[69]MR GAMMIE QC: My Lord, my junior is asking how the quantum will be dealt with.

MR JUSTICE BLAKE: Have you seen it?

[71]MR J PEACOCK QC: We have not, no. To be the subject of detailed assessment, if not agreed.

MR JUSTICE BLAKE: How do I deal with quantum? I know I have a costs bill.

[73]MR J PEACOCK QC: If I were to give this to your Lordship, your Lordship will see the tenor of the offer of what was said. (same-handed)

[74]MR JUSTICE BLAKE: Thank you very much. I will have to consider and reflect. I suppose that what I am minded to do is to see what the correspondence indicates and whether I should reserve costs, which is one possibility. My indication, at the moment, is I am probably not going to reserve costs, but decide what costs order, if any, should be made today. It might include a percentage of the defendant's costs to take account of the fact that there were other points raised. Thank you very much.