McDonagh, R (on the application of) v Secretary of State for Justice [2010] EWHC 369 (Admin)

Case No CO/13591/2009

[2010] EWHC 369 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT (Manchester)

Sitting at:

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

Date Wednesday, 20 th January 2010

M3 3FX

Before

HIS HONOUR JUDGE PELLING QC

SITTING AS A JUDGE OF THE HIGH COURT

Between

THE QUEENClaimant

On the application OfClaimant

McDONAGHClaimant

SECRETARY OF STATE FOR JUSTICEDefendant

(DAR Transcript of

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Mr Knight appeared for Claimant.

Mr Karim appeared for Defendant.

Judgment

[1]This is the hearing of an application for judicial review of a decision of the defendant to revoke the licence by which the claimant had been released from prison and to recall the claimant to prison.

The Background Facts

[2]On 5September 2003 the claimant was convicted of four counts of aggravated burglary and one of battery and was sentenced to eight years inprisonment. The claimant was released on licence first on 29 September 2008, but was recalled on 9 March 2009 following the breach of his licence conditions. He was rereleased on licence on 6 April 2009, but was again recalled on 9 May. He was rereleased on licence again on 26 June 2009.

[3]On 13 August 2009 at about 9pm the claimant was a passenger in a motor vehicle which it is common ground was being driven by someone other than the claimant at the time. The material suggests that the vehicle was being driven at a speed, 100 miles an hour, that was greatly in excess of the permitted speed limit when it collided with another vehicle.

[4]It is the defendant’s case that the claimant ran from the scene some 500 metres into a field that bordered the road. The collision occurred after sunset and the defendant’s case is that the claimant was hiding from the police. It is common ground that the claimant was injured in the collision, though how seriously is not clear. The defendant’s case is that the claimant was located by infrared camera on a police helicopter and was arrested by police officers who were directed to his location by the helicopter crew. The claimant’s case is that he wished to get away from the vehicles because he perceived one of them to be, as it was put, “smoking”; that is, that there was a risk of it catching fire or that perhaps it was on fire. In correspondence at any rate the claimant’s case has consistently been that he sat by the side of the road in proximity to the collision waiting for the police to arrive.

[5]By clause 5(i) of the claimant’s licence it was a condition that while he was under supervision he would:

“i. be well behaved, not commit any offence and not do anything which would undermine the purposes of your supervision, which is to protect the public, prevent you from re-offending and help you to resettle successfully into the community.”

[6]On 14 August 2009 the National Probation Service (“NPS”) issued a request to the defendant that the claimant be recalled to prison for supposed breach of his condition. In the request for recall, the type of recall requested was described as being “Emergency”. The breach of condition relied on was breach of clause 5(i) by reference to the requirement to be of good behaviour. The reasons for requesting the recall were stated to be:

“What are your reasons for requesting recall at this time? On 13/08/09 at approximately 18:40 hours Mr McDonagh was involved in a road traffic in South Yorkshire. He was in a car which a witness described as travelling at approximately 100 mph with three males inside. The car overtook another car after travelling on the wrong side of the road and crashed into a Clio. One male, of the three, was injured and left in the car. The two other males, one being Mr McDonagh, ran off from the scene and were arrested nearby after being tracked by police helicopter. What is the pattern of behaviour causing concern at this time? Of concern is that Mr McDonagh is arrested attempting to flee the scene of what was potentially a very serious road traffic accident.”

A little later in the same document, it was said that:

“Mr McDonagh has complied well with the drug treatment condition of his licence, having consistently provided tests negative to Class A drugs. He continues to engage with the drug worker in the team in order to maintain his motivation to remain abstinent. His general level of compliance has been excellent.”

The request asserted that this alleged breach was the third breach of the licence. What is the pattern of behaviour causing concern at this time? The request was authorized by Mr Goode, a senior manager of the NPS in these terms:

“Authorization and comments by senior manager (ACO or equivalent) “In light of the fact of Mr McDonagh’s whereabouts and the failure to comply with requirements, recall is agreed. There is a high risk of absconsion [sic] and emergency recall is therefore sought.”

What is the pattern of behaviour causing concern at this time?

[7]The application was considered by the Public Protection Casework Section of the Ministry of Justice on 14 August 2009, and the claimant’s licence was revoked that day pursuant to section 254 of the Criminal Justice Act 2003 as amended. The reasons given were:

“You have been recalled to prison because it has been reported by the Probation Service that you have breached the conditions 5(i) and 5(iv) of your licence as: 5(i) You failed to be well behaved, not commit any offence and not do anything to undermine the purposes of your supervision, which were to protect the public, prevent you from re-offending and help you resettle successfully into the community. 5(iv) You failed to live permanently at the address approved by your supervising officer and failed to notify him or her in advance of your change of address or proposed stay (even for one night) away from that approved address.”

Although that statement constituted the reasons set out in the formal document revoking the licence, it is to be read with the request for recall report (the material parts of which are set out above) because that was what was available to the author of this document and after recall had occurred a direction was given requiring the claimant to be served with the recall dossier which included both the recall document I referred to and the NPS’s document as well.

[8]It is accepted that the reference to clause 5(iv) of the licence is erroneous and cannot be supported.

The Parties’ Contentions

(i) The Parties’ Contentions

[9]The claimant attacks the decision by the defendant as entirely unreasoned, as one that should not have been made by the defendant on the information supplied to him by the NPS, and it is also contended that the decision to recall him was irrational in the public law sense having regard to the material that was available. The claimant seeks an order quashing the decision to recall and an order requiring the claimant to be released, presumably on licence terms no more onerous than those that applied prior to the revocation.

[10]The defendant contends that the application should be dismissed because:(a) the claimant’s recall has been considered by the Parole Board and upheld and thus it is inappropriate to challenge the decision of the defendant;

(b) the defendant has agreed to refer the claimant’s case back to the Parole Board on a speedy basis; and

The statutory framework

[11]The Criminal Justice Act 2003 (“the 2003 Act”) provides insofar as is material as follows: “(1) The Parole Board is to continue to be, by that name, a body corporate and as such is—(a) to be constituted in accordance with this Chapter, and

(b) to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) (in this Chapter referred to as “the 1997 Act”) in respect of life prisoners within the meaning of that Chapter. (2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. (3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider— (a) any documents given to it by the Secretary of State, and (b) any other oral or written information obtained by it; and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member. (4) The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it. (5) Without prejudice to subsections (3) and (4), the Secretary of State may make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times. (6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to— (a) the need to protect the public from serious harm from offenders, and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation. (7) Schedule 19 shall have effect with respect to the Board. By section 244 of the 2003 Act the Secretary of State is under a duty to release on licence a prisoner who has served the requisite part of his sentence. Section 250 of the 2003 Act requires that the licence must contain certain conditions and may contain others. And by section 252 a person subject to such a licence must comply with the conditions. (a) to be constituted in accordance with this Chapter, and (b) to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) (in this Chapter referred to as “the 1997 Act”) in respect of life prisoners within the meaning of that Chapter. (a) any documents given to it by the Secretary of State, and (b) any other oral or written information obtained by it; and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member. (a) the need to protect the public from serious harm from offenders, and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.

[12]Section 254 provides, insofar as is material: “(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison. (2) A person recalled to prison under subsection (1)—(a) may make representations in writing with respect to his recall, and

(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations. (…) “(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large.” (a) may make representations in writing with respect to his recall, and (b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

[13]Section 255A of the 2003 Act, which was inserted into it by the Criminal Justice and Immigration Act 2008 and applies to recalls under section 254 after 14 July 2008 and thus to this claimant’s recall, provides insofar as is material:

“(1) This section applies for the purpose of identifying which of sections 255B to 255D governs the further release of a person who has been recalled under section 254 (“the prisoner”). (2) The prisoner is eligible to be considered for automatic release unless— (…) (c) in a case where neither of the preceding paragraphs applies, he has, during the same term of imprisonment, already been released under section 255B(1)(b) or (2) or section 255C(2). … “(6) The prisoner must be dealt with— (…) “c) in accordance with section 255C if he is a specified offence prisoner or if he is not eligible to be considered for automatic release by virtue of subsection (2)(b) or (c).” (c) in a case where neither of the preceding paragraphs applies, he has, during the same term of imprisonment, already been released under section 255B(1)(b) or (2) or section 255C(2).

(c) ”

[14]The claimant had, as I have explained, already been released during the same term of imprisonment on licence on two occasions and accordingly was not eligible to be considered for automatic release. Section 255C therefore applied to his case. Section 255C of the 2003 Act provides insofar as is material: “(1) This section applies to a prisoner who— (…) (b) is not eligible to be considered for automatic release … (...) “(2) The Secretary of State may, at any time after the person is returned to prison, release him again on licence under this Chapter. “(3) The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison. “(4) The Secretary of State must refer to the Board the case of any person to whom this section applies—(a) if the person makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which he is returned to prison, on the making of those representations, or

(b) if, at the end of that period, the person has not been released under subsection (2) and has not made such representations, at that time. (5) Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.” (b) is not eligible to be considered for automatic release … (a) if the person makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which he is returned to prison, on the making of those representations, or (b) if, at the end of that period, the person has not been released under subsection (2) and has not made such representations, at that time.

[15]The powers of the Board on a review are dealt with by section 256 of the 2003 Act, which provides insofar as is relevant that:

“(1) Where on a reference under section … 255C(4) … in relation to any person, the Board does not recommend his immediate release on licence under this Chapter, the Board must either— (a) fix a date for the person’s release on licence, or (b) determine the reference by making no recommendation as to his release…” (a) fix a date for the person’s release on licence, or (b) determine the reference by making no recommendation as to his release…”

[16]There are further provisions in relation to further reviews by the Parole Board contained in section 256A of the 2003 Act which provide amongst other things that the Secretary of State must not later than the first anniversary of the determination by the Board under section 256(1) or (4) refer the person’s case to the Board. It requires that the Secretary of State may at any time before that anniversary refer the person’s case to the Board and by subsection (3) that the Board may at any time recommend the Secretary of State that the person’s case be referred under subsection (2). Where there is a reference as provided for in those provisions, then by subsection (4):

“ … the Board must determine the reference by— (a) recommending the person’s immediate release on licence under this Chapter, (b) fixing a date for his release on licence, or (c) making no recommendation as to his release.”

[17]Various directions were issued by the Secretary of State to the Parole Board pursuant to section 239 of the 2003 Act in April 2005 with respect to the recall of prisoners on licence. Insofar as is material those directions provide as follows: “Review of a Decision Taken by the Secretary of State to Recall an Offender “Section 254 of the Criminal Justice Act 2003 requires the Parole Board to review any decision taken by the Secretary of State to recall an offender to prison. The review will take place once the offender has been returned to custody. In determining whether the recall was appropriate, the Parole Board is entitled to take into account the information available at the time the recall decision was taken, together with any subsequent information, including representations made by or on behalf of the offender. The Parole Board should consider whether: a) The prisoners continued liberty presents an unacceptable risk of a further offence being committed; or b) The prisoner has failed to comply with one or more of his or her licence conditions; and that failure suggests that the objectives of probation supervision have been undermined. In cases where the Parole Board believes that the initial decision to recall was inappropriate, the prisoner should be re-released as soon as it is practicable to do so. In determining when to re-release the prisoner, the Parole Board should satisfy itself that the prisoner presents an acceptable risk to public safety and that adequate risk management arrangements are in place.” a) The prisoners continued liberty presents an unacceptable risk of a further offence being committed; or b) The prisoner has failed to comply with one or more of his or her licence conditions; and that failure suggests that the objectives of probation supervision have been undermined.

[18]In December of last year the Secretary of State issued further directions applicable to these cases but those were not in force at the time of the Parole Board review in the claimant’s case, and it is therefore unnecessary that I refer further to them.

Challenge to the decision to recall not available

[19]The defendant takes a preliminary point not identified in the summary grounds of resistance and identified for the first time so far as I am aware in the skeleton submissions filed on behalf of the defendant at this court very late on the eve of the hearing. This late filing of the skeleton argument is one of a number of unacceptable lapses of good practice which occurred in this case to which I refer at the end of this judgment,.

[20]The defendant contends that the appropriate means of challenging the decision of the Secretary of State was by review by the Parole Board. The point that is made is that the claimant raised the grounds now relied on before the Parole Board and the Parole Board decided not to recommend the claimant’s release. It is submitted therefore that this application should be dismissed. It is contended by the claimant that the Parole Board’s position is that it is not required to investigate the legitimacy of a recall and on that basis refused an oral hearing to the claimant to enable the rival contentions of the claimant and the defendant concerning the claimant’s conduct immediately after the collision to be resolved.

[21]As I said in the course of the hearing, this point is not of itself an answer to the point made on behalf of the defendant. If it is contended that the Parole Board should have but failed to direct an oral hearing of the claimant’s case, then the remedy is to apply for judicial review of that decision by the Parole Board. No such application has been made either in these or any other proceedings. The question therefore that remains to be answered is whether the Secretary of State’s point is a good one in law.

[22]I do not consider that it is for these reasons. The Secretary of State relies on two authorities to support his position. That is R (Gulliver) v Parole Board

[2007] EWCA Civ 1386

and R On The Application Of Woods v Secretary of State for Justice & Anr

[2009] EWHC 2503 (Admin)

. In my judgment neither case supports the proposition for which the Secretary of State contends. Gulliver was an appeal from the dismissal of the claimant’s application for judicial review of the decision by the Parole Board not to direct release. The decision of the Parole Board had been that(a) it did not find the breach of condition alleged had been proved but was satisfied that the Secretary of State could reasonably conclude that there had been a breach -- see paragraph 5 of the judgment of the Master of the Rolls -- but

(b) the Parole Board was not confined merely to reviewing the lawfulness of the Secretary of State’s decision to recall but had a duty to have regard to the whole of the circumstances in deciding whether to recommend release.

[23]The difference between Gulliver and this case is that in this case it is contended that the original recall was not lawful; whereas in Gulliver it was held that the claimant’s recall was lawful and the issue is whether if in fact there had been no breach, even though the recall was lawful because the Secretary of State reasonably believed a breach had occurred, the Parole Board was required to release or was duty bound to consider all the circumstances before authorising release. The Court of Appeal held that in the circumstances the Parole Board was duty bound to consider all the circumstances. But on proper analysis this case does not resolve the question of what is to happen in the event that the court considers that the revocation of the licence and the recall was not lawful, an issue that did not arise in that case but which it is contended arises in this case.

[24]Notwithstanding these points, the Secretary of State relies on the first instance decision on Woods (ante). The significant point in that case was that the Secretary of State appears to have accepted that the claimant’s licence should not have been revoked, and indeed invited the court to quash his decision to recall; see paragraph 6 of HHJ Kirkham’s judgment. In those circumstances the issue for the judge was whether, notwithstanding that the Secretary of State accepted that the claimant’s licence had been unlawfully revoked, the claimant’s continued detention was lawful. The Parole Board, but notably not the Secretary of State, contended that it was, applying Gulliver. The judge accepted this submission, rejecting as simplistic the proposition that:

“…the right and duty of the PB to deal with such a prisoner pursuant to that section must be predicated on the assumption that such a prisoner has been lawfully recalled.”

[25]For reasons that I have set out above, I do not consider that Gulliver has any impact on the issue that was identified by HHJ Kirkham as the issue she had to resolve. However, the issue only arises in this case if I conclude that the revocation of the claimant’s licence in this case was unlawful. I therefore leave to one side for the moment the question of whether I ought to follow Woods.

Lawfulness of Revocation

[26]Gulliver is a Court of Appeal authority for one proposition that is relevant for present purposes, namely that if the Secretary of State has reasonably concluded that there had been a breach of condition, then revocation of the licence and recall is lawful - see paragraph 5 of the judgment of the Master of the Rolls. On proper analysis, it was probably this distinction between a decision to revoke being lawful and one which was merely wrong on subsequent analysis by reference to further material that Sir Igor Judge was alluding to in paragraphs 44 and 45 of his judgment. Had this not been so, then Buxton LJ would not have agreed or even been in a position to agree with both judgments as in fact he did.

[27]That being so, the question I have to answer is whether on the information available to the Secretary of State on 14 August 2009, when the decision to revoke and recall was taken, he could reasonably have concluded that there had been a breach of the condition that required the claimant to be of good behaviour. Answering that question begs the logically prior question as to the true meaning and effect of the phrase “to be well behaved” in the context in which it is used in the licence. No case where this issue has been considered has been cited to me by either party. If there is authority which helps on this question, that failure is to be regretted.

[28]Doing the best I can, therefore, on the material available to me, I conclude that it does not merely mean not to commit criminal offences, for if that had been the intention then there would have been no need to include the words “to be well behaved” in the relevant part of the licence at all. Further, in my judgment the scope of the phrase is not controlled or delimited by the words “which are to protect the public, prevent you from re-offending and help you to resettle into the community”, because upon proper analysis those words applied, and applied only, to the phrase “and not to do anything which could undermine the purpose of your supervision”. Thus in my judgment the condition imposes three distinct requirements of which to be well behaved is one. In my judgment, to be well behaved means at least to conduct oneself not merely lawfully but in a way that does not adversely affect, annoy, hinder, inconvenience or distress another or others in relation to their lawful activities or performance of their lawful duties, whether by action, omission or by a course of conduct. Thus the question I have to answer in this case is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself, by reference to this standard in relation to the collision.

[29]In my judgment there was material from which the Secretary of State could properly reach such a conclusion. The key point is that the report from the NPC referred to the claimant “attempting to flee the scene of what was potentially a very serious road traffic accident”. In my judgment, to conduct oneself in this manner, in the circumstances, does not constitute being “well behaved”. Whilst it is true to say that the claimant disputes that he was attempting to flee the scene, there was more than sufficient material for the defendant and for the NPC reasonably to reach the conclusion that the claimant was conducting himself as alleged.

[30]Included within the papers is a statement from Miss Green, the author of the NPS report. As she says in paragraph 4, that she reviewed the circumstances of the road traffic accident by considering information provided by the police, the police incident report, and the account provided by the claimant in police interviews. Even putting to one side as irrelevant the allegation by the police that the vehicle in which the claimant was a passenger was being driven without consent -- because there is no evidence that the claimant knew that to be so -- there is clear evidence to show that the claimant ran from the scene and evaded the police until identified by the use of the police helicopter, and was arrested. It must have been blindingly obvious to the claimant that the police were looking for the occupants of the vehicle which had been involved in the collision, that they were entitled and under a duty to do so and that his conduct was hindering them in that purpose. The police log shows very clearly that the road traffic accident was serious and that it took police about 30 minutes to locate and detain the various occupants of the car that the claimant was a passenger in. It is true to say that the claimant disputes what is said in the police report, but that does not prevent the Secretary of State from reasonably concluding that a breach of the sort identified had occurred.

[31]Once the relatively low threshold that applies to the question the Secretary of State has to ask himself is understood, and the material available to the Secretary of State when making the decision is identified, in my judgment it becomes clear that the lawfulness of the revocation cannot be impugned.

[32]It was suggested on behalf of the Claimant by reference to paragraph 2f.3 of the National Standards for the Management of Offenders issued by the Offender Management Service that immediate recall should have been initiated only where what is alleged showed that the public is at substantially greater risk that had been thought to be the case when the licence had been granted.. However, the evidence available to the Secretary of State and the Probation Service suggested that there was a risk that the claimant would abscond. This was properly to be inferred from his conduct after the accident when viewed in the context of his previous record in relation to curfew issues.

[33]The only other point I ought to mention at this stage concerns a subsidiary argument that the decision to revoke the licence ought to be quashed because it does not contain any reasoning. As to this, the need for and extent of the reasons to be given for any decision depends on the factual context. The claimant seeks to rely on R(Gordon) v Parole Board (unreported) 7 November 2000. However, that case, a first instance decision, was concerned with allegedly inadequate reasons given by the Parole Board for not recommending the transfer of the claimant to open conditions. That is a wholly different context to the present one. That case was concerned with a decision from which there was no appeal and followed a detailed consideration of various reports and the like. The decision to revoke is wholly different one in nature, not least because by section 255C(4) of the 2003 Act there is a mandatory review by the Parole Board of the decision to revoke. In those circumstances, in my judgment, whilst reasons are required, they need not be lengthy. Here in my judgment sufficient reasons were given in the circumstances. The claimant was informed that he had been recalled because the Probation Service had reported the claimant to have breached clause 5(i) of the licence conditions. On or about 21 August 2009, as I have said, the claimant was supplied with his revocation dossier; see page 23 of the bundle. This included not merely the revocation but also the request for revocation. That material, when read together, enabled the claimant to understand the reasons for his recall sufficiently to enable the challenge to be made if such a challenge was thought appropriate.

[34]Once it is concluded that the decision to recall was not unlawful then the analysis set out in Gulliver applies. It is for the Parole Board to decide whether and when the claimant should be released, having regard to all the circumstances. If the claimant is not satisfied with the way in which the Probation Service has conducted itself then he can test that assertion in judicial review proceedings issued against the Parole Board. But that is for another day.

[35]In the light of the conclusions that I have reached, it is therefore not necessary for me to decide whether to follow Woods (ante) and I express no further views about it.

Procedural And Practice Issues

[36]There are a number of procedural and practice difficulties which have occurred in the course of this hearing to which I wish to draw attention to for the purpose of providing guidance as to the future conduct of cases before the Administrative Court in Manchester. There was no bundle of authorities made available to the court; rather, authorities were relied on, and worse, copies of the statutory framework material were produced piecemeal in the course of the hearing as and when counsel thought it appropriate to refer to them. The Secretary of State’s skeleton was served very late, which prevented effective pre-reading to take place; and the hearing bundle was both incomplete and not bound together, either in a file or with treasury tags.

[37]These features made conduct of this hearing, which took place on a busy day, materially both difficult both for me and for the court staff. Whilst I have not found it necessary in the circumstances of this case to take any further steps in relation to these breaches of good practice, parties that fail to address these points properly in the future may find that hearings are adjourned in order to allow the material to be properly supplied to the court and/or that some or all of the costs which otherwise might otherwise have been due to a successful party are disallowed or that the hearing of such cases will be postponed to the end of the list. It is to be hoped that such steps will not be necessary. Costs Ruling HIS HONOUR

Costs Ruling

JUDGE PELLING QC:

[1]This is an application for the summary assessment of costs, but to an extent it is academic since the claimant is publicly-funded in relation to these proceedings. Nonetheless I must summarily assess these costs against the possibility that permission may in the future be given to enforce.

[2]The rates that have been claimed are respectively £200 and £160 an hour for people who are described as being respectively a grade 6 and a grade 7 lawyer. Enquiries have revealed, though the schedule of costs should itself have said, that these equate respectively to a band A and a band B fee earner, and thus the rates that have been adopted are under those which apply under national guidelines band 1, which is the applicable rate for Manchester.

[3]The criticisms which are advanced, aside from those relating to counsels’ fees, are that six hours appear to have been spent by Miss Parr in attendances on counsel. I remind myself that the test in relation to the recovery of costs is not whether the costs were reasonably incurred but whether they were necessarily incurred. I do not see at the moment how attendances for six hours on clients in relation to this issue come close to being necessary in the circumstances. I recognise that some instructions will have to be obtained. I also take on board the point that there are two defendants, not one, although it is to be noted that those defendants effectively made common cause with each other.

[4]In those circumstances it seems to me that the appropriate period to allow for attendance on counsel, taking a broad brush approach, is three hours.

[5]So far as attendances on the client are concerned, there appears to be a degree of double manning in the sense that two hours have been claimed for a grade A fee earner for attending on the client and a further three and-a-half have been claimed by Miss Parr. I do not at the moment see how those sorts of attendances are necessary in the circumstances of this case such as this.

[6]It seems to me that the appropriate attendances in the circumstances would, again, be three hours in totality; that is to say, one and-a-half in respect of each client, broadly speaking. It is difficult to know who between the grade A and grade B fee earners should have been doing that, but I err on the side of caution by accepting that a grade A fee earner would be involved at any rate on attendances on clients in the first instance. So I allow three hours at £200 an hour in respect of attendance on clients.

[7]The other point which is made is that a claim is made for four hours for drafting a witness statement. The witness statement is short and its primary function is to provide a relatively superficial commentary on documents which are attached as well as to produce the documents that are referred to. It does not seem to me realistic to suppose that in excess of half a day’s working time would be spent in drafting such a document. In those circumstances I allow two hours for that item.

[8]Criticism was advanced of counsel’s fee in the sum of £2,350. However, that fails to take account of the full and lengthy skeleton that was prepared, as well as giving some advice, and in those circumstances it seems to me that that is reasonable in the circumstances.

[9]So far as the fee of attending today is concerned, I accept that there would have to be at least some time spent by Mr Karim in acquiring knowledge of the case sufficient to represent the defendant today, and therefore again I am prepared to allow that fee as asked.

[10]In the result, therefore, I assess fees by reference to the rates which have been adopted. I assess attendances on clients at three hours at £200 an hour; I assess attendances on counsel at three hours at £160 an hour; I allow attendance on opponents as asked; I allow attendance on others as asked; I allow two hours at £160 an hour for the drafting of the witness statement and I allow counsels’ fees as asked. -------------------