Buglife (the Invertebrate Conservation Trust), R (on the application of) v Thurrock Thames Gateway Development Corp & Anor [2008] EWHC 475 (Admin)

Case No CO/3858/2007[2008] EWHC 475 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 22nd February 2008
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
THE QUEEN ON THE APPLICATION OF
BUGLIFE - THE INVERTEBRATE CONSERVATION TRUST
(CLAIMANT)
-v-
THURROCK THAMES GATEWAY DEVELOPMENT CORPORATION
(DEFENDANT)
-and-
ROSEMOUND DEVELOPMENTS LIMITED
(INTERESTED PARTY)
Computer-Aided Transcript of the Palantype Notes of
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190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR MICHAEL FORDHAM QC and MISS EMMA DIXON appeared on behalf of the CLAIMANT
MR T D STRAKER QC and MISS CAROLINE BOLTON appeared on behalf of the DEFENDANT
MR WILLIAM HICKS QC and MR REUBEN TAYLOR appeared on behalf of the INTERESTED PARTY
J U D G M E N T
Between
Buglife (the Invertebrate Conservation Trust), R (on the application of)ClaimantThurrock Thames Gateway Development Corp & AnorDefendant
[1]MR JUSTICE MITTING: The claimant, the endearingly named Buglife - Invertebrate Conservation Trust, seeks permission to challenge by way of judicial review the grant of permission for development at the Northern Lagoon on the site of the former power station in Thurrock, dated 12th February 2007. Permission was granted for the construction and operation of a distribution depot for the Royal Mail on the application of the interested party and developer, Rosemound Developments Ltd.[2]As I indicated during the course of argument, I propose to grant, and do grant, permission to argue the two principal grounds upon which this claim is brought, and refuse permission to argue the remainder. In relation, therefore, to those two principal grounds this is a judgment in the judicial review and not merely on an application for permission.[3]The local planning authority is Thurrock Thames Gateway Development Corporation, a statutory corporation established pursuant to the Thurrock Development Corporation Area and Constitution Order 2003.[4]The statutory and legal background against which it made its decision is contained in primary legislation, secondary legislation, a ministerial statement and case law. The starting point is section 70 of the Town and Country Planning Act 1990 which provides that:
"70(1) Where an application is made to a local planning authority for planning permission ... (2) In dealing with such an application the authority shall have regard to the provisions of the development plan so far as material to the application and to any other material considerations."
[5]Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Act the determination must be made in accordance with the plan unless material considerations indicate otherwise."
[6]Since 1st October 2006 all local planning authorities, amongst other public bodies, are required by section 40(1) of the Natural Environment and Rural Communities Act 2006:
"... in exercising their functions, to have regard so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity."
[7]Section 74 of the Countryside and Rights of Way Act 2000 established a duty on Ministers of the Crown to have regard so far as is consistent with the proper exercise of their functions "to the purpose of conserving biological diversity in accordance with the Convention", a reference to the United Nations Environmental Programme Convention on Biological Diversity of 1992. One of the means by which that duty may be performed is set out in sub-section 3:
"... to promote the taking by others of such steps as appear to the authority to be reasonably practicable to further conservation of the living organisms and types of habitat included in any list published by the authority under this section."
[8]Lists of invertebrates, in common parlance, insects, whose continued survival is challenged have been made. Three such invertebrates are present on this site. I need, I think, describe them no further than to say that they are a wasp, a bee and a beetle. There are, in addition, a large number of other species of invertebrates, many of them endangered or the subject of particular concern.[9]The primary statutory duty under section 40 of the 2006 Act is supplemented, and certainly not contradicted, by National Policy. Planning Policy Statement 9 issued in August 2005 provides in paragraph 1(vi):
"The aim of planning decisions should be to prevent harm to biodiversity and geological conservation interests where granting planning permission would result in significant harm to those interests. Local planning authorities will need to be satisfied that the development cannot reasonably be located on any alternative sites that would result in less or no harm. In the absence of any such alternatives, local planning authorities should ensure that before planning permission is granted adequate mitigation measures are put in place. Where a planning decision would result in significant harm to biodiversity and geological interests which cannot be prevented or adequately mitigated against, appropriate compensation measures should be sought. If that significant harm cannot be prevented, adequately mitigated against or compensated for, then planning permission should be refused."
[10]The final paragraph, paragraph 16 of the Policy Statement, concludes:
"Planning authorities should refuse permission where harm to the species or their habitats would result, unless the need for and benefits of the development clearly outweigh that harm."
[11]The species there referred to are those identified as requiring conservation action and clearly include at least the three insects to which I have referred.[12]That Policy Statement was not made pursuant to any statutory power, although plainly it is consistent with the exercise by the Secretary of State of her duty under section 74(3) of the 2000 Act. The significance of the policy was addressed by Woolf J in Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P&CR 86 in a passage which I understand to be widely accepted as an accurate statement of the law:
"The situation, as I see it, is as follows: first, section 29 lays down what matters are to be regarded as material, and the policy cannot make a matter which is otherwise a material consideration an irrelevant consideration. Secondly, if the policy is a lawful policy, that is to say, if it is not a policy which is defective because it goes beyond the proper role of a policy by seeking to do more than indicate the weight which should be given to relevant considerations, then the body determining an application must have regard to the policy. Thirdly, the fact that a body has to have regard to the policy does not mean that it needs necessarily to follow the policy. However, if it is going to depart from the policy, it must give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken. ..."
[13]Plainly, a non-statutory policy cannot require a local planning authority to act in a way which would put it in breach of other statutory duties, nor could a non-statutory policy have the effect that a local planning authority could not take into account something which it was required to do by primary or secondary legislation.[14]The Development Corporation in this case is subject to section 136 of the Local Government Planning and Land Act 1980 which provides:
"(1) The object of an urban development corporation shall be to secure the regeneration of its area. (2) The object is to be achieved in particular by the following means (or by such of them as seem to the corporation to be appropriate in the case of its area) namely by bringing land and buildings into effective use, encouraging the development of existing and new industry and commerce, creating an attractive environment and ensuring that housing and social facilities are available to encourage people to live and work in the area."
[15]On any view, the duty set out in sub-section 2 - for what is the means by which an object is to be achieved other than a duty - to use those means qualifies, or is to be read alongside, the duty under section 40 of the 2006 Act. Furthermore, there is obvious tension between the duty to bring land into effective use and aspects of Planning Policy Statement 9 paragraph 1(vi), in particular the obligation on a local planning authority to be satisfied that development cannot reasonably be located on any alternative site, and the obligation to refuse planning permission should it not be possible to prevent, mitigate or compensate for significant harm.[16]Those are the statutory and other materials which relate to the first of the issues raised by the claimant in this judicial review.[17]The second of the issues is perhaps more familiar and relates to environmental impact assessments. The Regulations are now the Town and Country Planning Environmental Impact Assessment England and Wales Regulations 1999, paragraph 3(2) of which provides:
"The relevant planning authority ... shall not grant planning permission pursuant to an application to which this Regulation applies unless they have first taken the environmental information into consideration and they shall state in their decision that they have done so."
[18]Environmental information is defined in Regulation 2 as:
"the environmental statement including any further information and any other information, any representations made by anybody required by these Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the development."
[19]And Environmental Statement means a statement that includes such of the information as is set out in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and:
"(b) that includes at least the information referred to in Part 2 of Schedule 4."
[20]For present purposes, the relevant sub-paragraph of Part 2 of Schedule 4 is:
"(2) A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects."
[21]In Smith v Secretary of State for Transport and the Regions (2003) EWCA Civ 262, Waller LJ, giving the first judgment at the Court of Appeal, observed in paragraph 27 that:
"... the planning authority ... will have failed to comply with article 4(2) [the precursor to Regulation 3(2)] if they attempt to leave over questions which relate to the significance of the impact on the environment, and the effectiveness of any mitigation."
[22]The claimant's challenge to the lawfulness of the decision can be encapsulated in the following two propositions.(1) the decision-making body did not apply the guidance given in paragraph 1(vi) of DPS9;(2) the means by which it dealt with the environmental impact of the development which it permitted simply put over for another day assessment and the means of dealing with it.[23]It is necessary to examine in a little detail what happened in the course of the grant of permission. The application was made on 4th April 2006. It was accompanied by a very lengthy environmental assessment which itself included an assessment of the impact upon ecology of the proposed development, running to over 250 pages. The assessment acknowledged in paragraph 10.113 that the development would lead to the loss of approximately 50% of the area to buildings and hard standing, and 70% of the herb rich grass land which was important to a large number of invertebrates on the site. The impacts were considered to be permanent with the majority being of moderate to major significance prior to mitigation.[24]Natural England, a statutory consultee, initially objected to the developments, but following extensive discussions and negotiations between it, the developers and the corporation, withdrew its objections on terms. In a letter of 23rd October 2006 it set out its final position. It is not necessary for me to set out the detail of the measures to which it was willing to agree; merely its conclusion. The measures included a reduction in the built area on the site and steps to phase in the development on the site with developments nearby, in particular on a site of special scientific interest, the Southern Waste Lagoon at the former power station. "We believe the proposals provide an opportunity to secure the long-term conservation and enhancement of this important ecological hub in West Thurrock. Therefore, subject to the proposed amendments to the draft section 106 agreement and the attachment of suitably worded planning conditions, as suggested, Natural England withdraws it objection to these planning applications."[25]The section 106 agreement with the developer, dated with the grant of permission 12th February 2007, provided, amongst other things, an undertaking by the developer not to: "use the ecology area in any way inconsistent with providing the ecological improvement works from the date of this Deed".[26]The ecology area was the area which was not to be built on or made in to hard standing, but was to be left as grassland within the development site. Various other provisions for mitigation were made of which, as I have indicated, in the view of Natural England, the most important was the phasing of development works on this site with works elsewhere.[27]The professional officers of the corporation submitted a lengthy and careful report and assessment to the decision-making committee. It set out on internal page 24 an accurate summary of the requirements of PPS9(1)(vi). It observed on internal page 27 that:
"The over-riding consideration in determining this application must, however, be ecology and nature conservation and whether the proposed development is compatible with it."
[28]It noted that the relevant development plans "recognised that the site is of prime importance for ecology and nature conservation and that any development permitted on the site must retain the nature conservation value of the site itself and the adjoining Southern Lagoon, which is a designated SSSI."[29]It went on to describe mitigation measures, which I have very briefly already summarised. It concluded at internal page 28 that the development works would result in the need for time to establish refuges and habitats for creatures who would be displaced from the Northern Ash Lagoon and noted correctly that Natural England were looking for the development to be phased to ensure that it had a less dramatic influence on the ecology of the area and allowed "new" ecological areas to become established long enough to be viable. The officers noted that the applicants for permission had submitted a plan detailing how it could be phased to reflect Natural England's concerns. The officer's recommendation was, in the light of those and other considerations, that permission should be given.[30]The permission itself is laconic as to what was granted and as to reasons. What was the granted was identified by reference to industrial uses and deposited plans. There were detailed conditions, the last two of which were "29. Prior to the commencement of the development hereby permitted or remediation of the site, a wildlife protection plan for this development, incorporating by not necessarily limited to detailed measures for wildlife protection during all phases of development, including remediation, site preparation, construction activities and service installations shall be submitted to and agreed in writing by the local planning authority. The wildlife protection plan for development shall include(a) appropriate plans showing wildlife protection zones where construction activities are restricted and where specific protective measures will be installed, implemented and employed,(b) details of protective measures including both physical measures and sensitive working practices to avoid impacts during construction,(c) line of responsibility and communication including the appointment of a suitably qualified Ecological Clerk of Works to advise on site. Development and remediation works shall be undertaken in strict accordance with the agreed measures. Reason: In the interests of safeguarding the ecological and nature conservation interests of the application site and adjoining site of special scientific interest. Furthermore, in accordance with ..."[31]and there are there numbered the relevant local plan policies. "30. Prior to the commencement of the development or remediation of the site a phasing plan for the whole of the development hereby approved shall be submitted to and approved in writing by the local planning authority. The phasing plan shall take account of the need to provide a suitable compensatory habitat. Development and remediation shall be undertaken in strict accordance with the agreed phasing plan. Reason: To ensure that the development has regard to the need to provide suitable compensatory habitats in the interest of nature conservation."[32]The reasons for approval were:
"Having taken all the material considerations into account, it is considered that, subject to compliance with the attached conditions, the proposal would be in accordance with the development plan and would not cause unacceptable harm to the amenities of the area or prejudice highway safety or convenience."
[33]In a passage headed "Informative" the reasoning of the decision-maker was expanded upon:
"The local planning authority has considered and assessed the content of the environmental assessment (EA) submitted with the application, as well as consultation responses received from statutory bodies on particular technical matters. Consideration has also been given to the statutory planning policy framework and the views expressed by third parties. Subject to the mitigation measures identified in the EA being carried out, the conditions of the permission being complied with, and the terms of the planning obligation met, the local planning authority concludes that the proposed development is acceptable in the long term. It is accepted that there may be short term harm to some of the existing wildlife habitat. However, the proposal will result in the long term management of the site which will secure the continued presence of the habitat which is of major conservation value. In addition, the proposal will facilitate the enhancement and continued maintenance of the adjacent nature conservation site of national importance, (SSSI)."
[34]Mr Fordham QC for the claimants submits that in the documents, which I have reviewed and in part summarised and in part cited, it is apparent that neither the officers nor the committee went through a step-by-step process as he submits its required by paragraph 1(vi) of PPS9. It is plainly right that they did not do so expressly. He submits, therefore, that having failed to follow a step-by-step process, then the decision made is procedurally flawed and must be quashed and submitted for further consideration, by this court. I remind myself that a benevolent construction should be given to planning decisions and a fortiori to the reports of planning officers to decision-makers. Merely because something is not expressly set out in a document does not mean that it has been overlooked. Merely because a step-by-step approach, as on one reading might be thought to be required by PPS1(vi), has not been followed, it does not automatically follow that the decision should be quashed.[35]What is necessary is to look behind the words and see what in substance has been decided. What in substance has been decided here is that by taking the appropriate mitigation and phasing measures approved by Natural England and specified in the planning permission and section 106 agreement, the harm which would otherwise be caused to this site will not be long-term and, when taken together with the impact of this development on adjoining land, will be no more than temporary. It is fair to describe such harm as not "significant harm". Accordingly, it was not necessary for the decision-maker to go through the steps suggested in paragraph 1(vi) and look first for alternative sites, then to go on to consider mitigation, then compensation, and then decide whether or not to refuse if significant harm remained. The simple reason was that, in the view of the decision-maker, the short-term harm alleviated by phasing measures was not significant. If the decision-maker had not reached that view, then it would have been necessary for the committee to consider its primary statutory obligation under section 136(2) of the 1980 Act.[36]For my part, although on my reasoning this does not arise for decision, I would find it difficult to see how a development corporation established under the 1980 Act could decide that it had to look for alternative sites to land which could be brought into effective use before going on to consider the effects of mitigation and compensation.[37]I turn now to the second ground of challenge, the environmental impact assessment --[38]MR FORDHAM: My Lord, I am very sorry to interrupt, but could I invite you to give brief reasons in relation to the paragraph 16. You have given reasons in relation to a key principal -- I apologise for interrupting, but I hope it is not inappropriate for me.[39]MR JUSTICE MITTING: Not at all. I will gladly do so. I am grateful for your interjection because it permits me to deal with something that I can and should deal with.[40]Mr Fordham further submits that the last sentence of paragraph 16 of PPS9 requires planning authorities to refuse permission where "harm" to the species or their habitats would result unless the need for development benefits clearly outweigh that harm, and that that balancing exercise has not been undertaken by this committee. The same observations as apply to paragraph 1(vi) that I have already made apply to this provision. First, it must be read in the light of the preceding paragraphs, including 1(vi). The sentence cannot possibly mean that any harm, however insignificant, must result in a refusal of permission unless the benefits of development clearly outweigh it. What is there referred to, in my view, as a straightforward matter of construction is the significant harm, which is identified in paragraph 1(vi). Accordingly, by the same reasoning process, this decision in no way infringed the policy stated in the last sentence of paragraph 16.[41]Further, to the extent that there is any tension between them, it seems to me, likewise, that the statutory obligation under section 136(2) must prevail over the policy advice in the last sentence of paragraph 16.[42]I turn now to the second ground of challenge, the environmental impact assessment. I remind myself of one further observation in relation to this aspect by Sullivan J on the R (Rochdale MBC) ex parte Milne (2001) Env LR 22 at paragraphs 108 and 109."108. It is for the local planning authority to decide whether it has sufficient information in respect of the material considerations. Its decision is subject to review by the courts, but the courts will defer to the local planning authority's judgment in that matter in all but the most extreme cases.109. There is no reasons why the adequacy of this information, which includes the sufficiency of information about the site, design and scale of development, should not be determined by the local planning authority."[43]Although it is true that the detail of the mitigation and phasing and compensatory measures that were required to be taken were not fully spelt out in the documents to which I have referred, nevertheless there can be no question but that in compliance with Regulation 3(2), a very careful and thorough environmental assessment was made and conclusions reached which addressed the impact of the development upon biodiversity and ecological factors.[44]This is not a case in which those matters have simply been put off for determination on another day. It is true that, as the letter from Natural England of 23rd October 2006 demonstrated, and as indeed was obvious, the precise impact on any part of this site or on any part of any other adjoining land of this development and the remedial measures could not be finally assessed until after the development had been undertaken. There was laid out in the section 106 agreement and in conditions 29 and 30 an enforceable and sufficiently detailed means of dealing with the impact upon the environment of this development. In a nutshell, the obligation imposed upon the corporation by section 3(2) was fulfilled. For those reasons, I reject the challenge on the two principal grounds advanced by Mr Fordham. I think I need say no more about the subsidiary grounds, other than that they added nothing material to the two principal grounds and for those reasons I have rejected the application for permission in respect of this.[45]MR STRAKER: My Lord, I am grateful for your Lordship sitting to conclude. Can I ask on behalf of the defendant, therefore, for an order that the application formally be dismissed with an order in favour of the defendant of costs to be paid by the claimant to the defendant.

MR JUSTICE MITTING: They are capped, are they not?

[47]MR STRAKER: They are capped, my Lord, so I would ask that they be paid up to that cap.

MR JUSTICE MITTING: Have you served a schedule?

[49]MR STRAKER: I don't believe we have. If we have, I have not been told about it. No, we haven't, my Lord.[50]MR JUSTICE MITTING: It is customary in judicial review proceedings only to award one set of costs, even where there isn't a cap in place.[51]MR TAYLOR: My Lord, we are going to make an application for costs, but only in respect of one part of the grounds. My Lord will be aware that the second set of costs can be awarded where there is some separate particular matter that requires and interested party to intervene and to take an active role. You will recall in relation to ground 3 there was an allegation that there had been a downgrading of impacts on the environmental statement. The development (inaudible) were the only people in a position to provide evidence to the court in relation to that particular point.[52]MR JUSTICE MITTING: That was, in the greater scheme of things, a relatively minor aspect of the case which required to be resolved factually, and was.[53]MR TAYLOR: Indeed. The court found today that it was not even arguable. So on that basis we would ask for an order that we be granted costs in relation to what we have incurred in meeting that ground.[54]MR JUSTICE MITTING: Understood. Mr Fordham?[55]MR FORDHAM: Taking the second point first, my Lord, that cannot possibly justify a second order, we would submit. Permission was refused. This was effectively the permission renewal on that point. It needed to be answered; it was answered, and we were realistic in the way that we approached it. So we say that on that point that can't justify. They would have been here in any event and they would have put in their materials before the court in any event. So that, we would say, disposes of the interested party's application for costs. In any event, you will have seen that the cap covers the total amount. Sullivan J said the upper limit of the total amount of costs is recoverable from the claimant. I'm not sure what the interested party is envisaging, but we submit that their application should be refused.[56]My Lord, I accept in relation to the defendant that the position is that there is the £10,000 referred to in the costs capped order. However, I do submit, firstly, that one should not be distracted by that from considering what one would have done in any event. This clearly is a case in which there were important considerations and anxious considerations and matters in relation to the public interest and environmental protection, rather than any private interest by any individual. That is the first point I make.[57]Secondly, it does rather link to what I will need to come on to apply for myself, and because it links, can I briefly make our position clear. We would be asking my Lord to give us permission to go to the Court of Appeal and, if necessary, moving the Court of Appeal, we say there is a prospect that the Court of Appeal will take a different view of this officer's report, taking account of the important considerations which were in play. The section 106 point only goes to increase the importance of the issues in this case. That is not an unrealistic or fanciful prospect and therefore it would be appropriate, and in those circumstances there really ought to be a rolling over of the cap that has enabled us to bring these issues before the court.[58]So those two points are our response to the defendant's application for costs. We say there should in fact be no order for costs. If there were to be any order for costs, it ought to be directed that it not be enforced without the leave of the court. The reason for that is were the Court of Appeal, assuming that my Lord is against me on permission to appeal, if it is considered appropriate for the Court of Appeal to consider these issues, that should not be thwarted by my clients being squeezed in relation to their finances in not taking this case any further.[59]So we ask you to consider all those matters in the round when considering what to do in the question of costs.[60]MR JUSTICE MITTING: I note from their balance sheet that the total assets less current liability is £176,000. They have restricted funds of £73,000 and unrestricted funds of just over £100,000. No doubt these proceedings have cost them something.[61]MR FORDHAM: My Lord, yes. There is a witness statement.[62]MR JUSTICE MITTING: Are you able to give me a current snapshot balance sheet, taking into account the position of the Trust after my order today, dismissing their application.[63]MR FORDHAM: Can I find out whether I can give an answer to that question? (Pause) My Lord, I hesitate to do this, but I am wondering whether the proper course would be for us to put in written submissions promptly to my Lord. You have heard the argument by my learned friend, so we can deal with what the position is now, updating the witness statement.[64]MR JUSTICE MITTING: All I wanted was a ball park figure. I am not asking for anything precise. (Pause)[65]MR FORDHAM: In terms of a ball park impact of the proceedings, it is around £30,000.[66]MR JUSTICE MITTING: So their free funds, barring any alterations for other reasons, would be the order of £70,000 now?[67]MR FORDHAM: Again, I don't have the detail. I am doing my best to assist my Lord. I would be more comfortable to give you an accurate figure in writing, but that is the best I can do on my feet.[68]MR JUSTICE MITTING: All right. On any view, it is not a particularly well-funded trust.[69]MR FORDHAM: Not at all. Of course, one brings litigation and there is a witness statement on this. It is a matter of last resort. The evidence that Sullivan J accepted was that he did not feel in good conscience that anything beyond the (inaudible) we would be able to go further. It is not that a trust of this kind wishes to commit all its resources, given its priorities nationwide, to a particular case, but obviously it is an important matter. In seeking to balance those things together, I would submit we ought to be in a position, if the Court of Appeal is prepared to entertain this case, we ought to be in a position not to be shut out from that. Therefore, I have made the submission I have.[70]MR JUSTICE MITTING: So in descending order of preference, your submissions are no order for costs, an order for costs capped at £10,000 but not to be enforced until after your application for permission to the Court of Appeal, if I refuse it, is considered, and if a full appeal occurs, until after the conclusion of that.[71]MR FORDHAM: Yes.[72]MR STRAKER: My Lord, as far as the first is concerned in that descending order, I would respectfully say that that would not be a correct approach. The position is one here whereby there was a decision taken in the public interest by the development corporation as a planning authority, as planning decisions are. Your Lordship will see my skeleton to that. Second, Sullivan J, of course, indicated in the order that you are taking your risk in relation to the funds which he is providing the cap in respect of. So in my respectful submission, that would not be a right course of action.[73]As far as the second course of action is concerned, ie, don't pay out until the Court of Appeal has spoken, my Lord, as far as that is concerned I would not wish to take up too much time in connection with that, providing that was subject to some sensible time scale for that. Obviously, your Lordship cannot say that the Court of Appeal must deal with it by such and such a date, but your Lordship can say that if any application is going to be made, if you are going to do that, it has to be made by such and such a date.

MR JUSTICE MITTING: There is a fairly short time scale already.

[75]MR STRAKER: Of course there is, my Lord, but that is the point in connection to that. We would be kept out of our money pending the Court of Appeal, if your Lordship came to that conclusion, and your Lordship can shave a bit off in relation to that.[76]MR JUSTICE MITTING: I will have to wait for a transcript and that does not leave much time after getting that.[77]MR STRAKER: My Lord, I accept all those practicalities, and then a single Lord Justice will have to consider it in the fullness of time, and you and I don't know what the fullness of time will be for a single Lord Justice.[78]The third situation, obviously the payment now, is the one I would respectfully urge upon your Lordship. In my respectful submission, the position is one whereby you should not really now be asked to say that the Court of Appeal will decide that this ought to be protected by way of costs, or that those be left over to them. Your Lordship should simply deal with the position as it is now and if the position now is that leave should be refused, and I suggest it should be refused to appeal, it should follow that I should get my limited costs.[79]MR TAYLOR: We would respectfully agree with the submissions from my learned friend, Mr Straker.

MR JUSTICE MITTING: Do you want to fight over £10,000 with him?

[81]MR TAYLOR: I imagine that is what we would have to do, and come to some arrangement of our percentage of the pot, as it were.[82]I would mention one point that Mr Straker touched on, and that is abridgment for time for appeal. My Lord will be aware that this matter was to be a longer period to result in application by my clients for expedition. The reason for that was that every week that this mitigation continues costs my clients £25,000 in holdings costs. Litigation has been ongoing for almost a year. So we are extremely keen that this litigation should come to a swift and rapid conclusion. In that regard, we see it as appropriate that the time for appeal should be abridged to seven days. That is a matter I was going to raise in respect of any application for any appeal in any event.

MR JUSTICE MITTING: That is simply impossible, given the need for a transcript.

[84]MR TAYLOR: I believe that my Lord has the power to order an expedited transcript.[85]MR JUSTICE MITTING: I do, but the shorthand writers can only do their best. Expedited transcripts take about a week, and that leaves no time at all for drafting.[86]MR TAYLOR: My Lord has the point.

MR JUSTICE MITTING: I do.

[88]MR FORDHAM: Can I just deal with the time frame, my Lord. If you would please direct that there be an expedited transcript and we would be content if there is time from receipt of the transcript, whether it is seven days or ten days. That is a sensible way of dealing with it.[89]MR JUSTICE MITTING: In what I believe to be a logical order, I refuse the interested party's application for costs. Only one set of costs should be awarded in these proceedings, with the usual rule. I order that the claimant pay the defendant's costs, capped at £10,000. That order is subject, however, to a stay. I refuse the application for permission to appeal. Any application to the Court of Appeal for permission to appeal must be made within seven days of the receipt by the claimant's solicitors of the expedited corrected transcript. I order expedition of the transcript. The stay on the costs order will remain in place until further order by the Court of Appeal. I decline to set any cap on the costs of appealing to the Court of Appeal. If there is to be any such cap, it will have to be set by that court.[90]MR STRAKER: Can I just add to that one matter. It covers the situation of my learned friend deciding not to appeal. Would your Lordship say until further order made by the Court of Appeal, or failure by the claimant to lodge a Notice of Appeal?[91]MR JUSTICE MITTING: I ought to qualify it in this way. Until further order by the Court of Appeal, the time for applying for permission to appeal elapsing, or the refusal of permission to appeal by the Court of Appeal, whichever the earlier.[92]MR STRAKER: I'm much obliged, my Lord.[93]MR JUSTICE MITTING: Would somebody please prepare that order to save the associate the task of getting it right. Thank you. Thank you all for an interesting argument.