This is a case stated for the opinion of the Court of Appeal by a Social Security Commissioner, Moya F Brown. She gave her Decision on 20 October 1999. The case stated is dated 20 July 2000 and it was listed for hearing before us on 14 December 2000.
The Background Facts
Niall McClelland was involved in a road traffic accident on 17 October 1996. The lorry which he was driving was in collision with a motor car driven by William Henry Rodgers and owned by Bodel Distributions Limited at Charlestown Road, Portadown, Co Armagh on that date. He sued the driver and owner of the lorry for £15,000 damages for personal injuries, loss and damage. He claimed £3,500 for damage to his lorry, £235 for recovery of the lorry and the balance as general damages in answer to a Notice for Particulars. That is to say, he made no claim for loss of earnings. He was awarded £6735 by Deputy County Court Judge Garrett. That is to say, he was awarded £3000 for his injuries. The medical report of Mr Richard Wallace FRCS dated 12 June 1997 was put before the court as an agreed medical report. This report indicated that he had suffered an upsetting experience and soft tissue straining injuries to the neck and lower back. Mr Wallace commented that after such an injury gradual onset of symptoms is a common feature followed by an initial acute phase after which symptoms resolve often in a variable manner over a period of some weeks to some months. In some cases it can take some 12 to 18 months to settle satisfactorily. He said that Mr McClelland described some problems with the right knee prior to the accident but it would appear, he stated, that he did not injure his knee in the accident. Mr Wallace expressed no opinion as to whether he was unfit for work for any period after the accident. Mr McClelland gave oral evidence to the court.
Before his accident Mr McClelland had been in receipt of Income Support on the basis that he was available for and capable of work. Payments of Income Support after the accident were made on the basis that he was incapable of work. Sickness Certificates signed by his general medical practitioner were submitted in support of the claim that he was incapable of work. These certificates referred to back and neck pain and some of them also referred to shoulder pain. It was stated that these pains had been present since the accident.
Mr McClelland was examined by a Medical Officer of the Department of Health and Social Services (DHSS) on 14 November 1997 who found him to be capable of work. An Adjudication Officer decided that he was capable of work from 22 December 1997. Mr McClelland appealed against his decision and on 6 March 1998 a Social Security Appeal Tribunal (SSAT) allowed the appeal with effect from 22 December 1997.
On 19 November 1996 Eagle Star Insurance which insured Mr Rodgers and Bodel Distributors Limited informed the Compensation Recovery Unit (CRU) that Mr McClelland had been involved in the accident and was claiming compensation for personal injuries sustained in the accident. A Certificate of Recoverable Benefits was issued by CRU on 17 December 1997. The solicitors for Eagle Star Insurance requested a review of the Certificate and submitted a medical report in support of the request for a review on 28 January 1998. The CRU informed the solicitors that the certificate would not be revised by letter dated 7 April 1998. The insurers appealed and the appeal was heard by a Medical Appeal Tribunal (MAT) which decided, on 9 July 1998, that the amounts, rates and payments set out in the certificate were correct and that they were bound by the decision of the SSAT that Mr McClelland was incapable of work due to the accident.
The insurers applied for leave to appeal to the Social Security Commissioner from the decision of the MAT. Mrs Moya F Brown granted leave, heard the Appeal and gave her decision on the appeal on 20 October 1999.
The Commissioner set out Articles 13 and 14 of the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997 and the submissions of Mr Gormley, of Ronald Rosser and Company, Solicitors, acting for the insurers and of Mrs Fitzpatrick, Solicitor, of the Department of Health and Social Services (DHSS) Solicitors' Department.
She referred to the decision of the SSAT dated 6 March 1998 and its findings which she had before her. She went on to state that it was quite apparent from the scoring which the SSAT recorded that the accident was an effective cause of the award of Income Support.
She then referred to the decision of the MAT from which the insurers had appealed to her and posed the question as to what was the jurisdiction of the MAT. She stated that the MAT considered itself bound by the decision of the SSAT and that she considered that it was correct to do so. She stated that the MAT was not in a situation to re-try the issue as to whether or not Mr McClelland was incapable of work. It did not have jurisdiction in this respect. That jurisdiction was reserved to the Adjudication Officer and the SSAT. The SSAT having determined that Mr McClelland was incapable and having found at least one of the effective causes of that incapacity to be a condition resulting from the accident, the Tribunal could not decide differently.
The MAT had not recorded that it took any court decision into account. She stated that it was the decision of the court and not a mere court order which the MAT must take into account. She could find no error in this respect.
She referred to the Social Security (Adjudication) Regulations (Northern Ireland) 1995 and set out portion of Regulation 1 which defines a "claimant" and "a party to the proceedings". Included in the latter definition is "any other person appearing … to be interested in the proceedings". She considered that the insurers might fall within this part of the definition as a "person appearing … to be interested in the proceedings". But, she stated, she did not have to decide that as failure to notify that person did not render the SSAT decision a nullity or void ab initio. She referred to a Tribunal of Commissioner's decision (C1/79/1990) and stated that she was following the reasons set out at paragraph 34 of that decision.
Accordingly she dismissed the appeal.
The insurers required her to state a case for the opinion of the Court of Appeal and set out the matters of law in respect of which they wished her to state the case. She did state a case as we have indicated and set out four questions on which the opinion of the Court of Appeal was sought:-
"(i) Was I correct in deciding that failure to give the Compensator notice under Regulation 4(2) of the Social Security (Adjudication) Regulations (Northern Ireland) 1995 did not render the Decision of the SSAT of 6th March 1998 a nullity or void ab initio?
(ii) If the answer to (i) is `yes' was I correct in deciding that the MAT was bound by the Decision of the SSAT dated 6th March 1998 that the subject accident was an effective cause of incapacity for work and therefore of the award of Income Support to Mr McClelland between 17th October 1996 and 27th January 1998?
(iii) Was I correct in deciding that the provisions of Article 14(3) of the Social Security (Recovery of Benefits) (NI) Order 1997 bound the MAT to take into account court decisions but not mere court orders?
(iv) Was I correct in deciding that the MAT had not erred in its decision that the certificate of recoverable benefits listed no benefit paid otherwise than in respect of the relevant accident, injury or disease?"
In this court Mr Ringland QC and Mr Good appeared for Eagle Star Insurance and Mr Weatherup QC appeared for the Department of Social Development.
The First Question
In his skeleton argument Mr Ringland QC contended that notice to the insurers was required and that the failure to notify rendered the decision of the SSAT a nullity or void ab initio but he abandoned this argument before us.
Mr Weatherup QC for the respondent argued that the right originally claimed by the appellant was unnecessary in view of the answer to Question 2. The appellant as "compensator" could make his challenge as to the extent of its liability for repayment of benefits in the appeal to the MAT. In any event the proposed involvement of a compensator in claims for entitlement to benefit would be inappropriate because –
(a) The determination of entitlement to benefit would be made immediately after the accident in question and generally that would be long before any claim had been initiated or notice given by potential compensators to the CRU (although that was not so in this case).
(b) Benefit entitlement as such is not relevant to the compensator as it is an issue between the claimant and the authority; it is benefit attributability which is relevant to the compensator as it is an issue between the compensator and the authority and that is decided by the MAT.
(c) There are confidential aspects to the claim for benefit and the benefit authorities have a statutory duty to maintain confidences. Even in the benefit recovery system there are restrictions on the extent of disclosure that may be made to compensators and judicial review proceedings by compensators to secure greater disclosure have been dismissed.
(d) At any time the compensator may forward to the Department evidence of non-entitlement to benefit and the benefit authorities can review the applicant's entitlement.
(e) The compensator is not a person "interested" in the proceedings before the SSAT. The "interest" in question must be based on the relevance of the interest claimed to the issue to be determined. Such relevance does not exist for the reasons given at (a) to (d). The compensator's proper interest is in attributability and that interest is accommodated by the MAT.
The Second Question
Mr Ringland QC submitted that the compensator's entitlement to appeal is found in Articles 13 and 14 of the 1997 Order. The decision of the MAT and of the Commissioner on appeal could not be right because –
(a) Parliament has given the MAT jurisdiction to determine any question falling within these Articles. The purposes of the CRU scheme is that tortfeasors or their insurers should repay to the DHSS those benefits which the DHSS paid to a claimant as a consequence of the accident for which the tortfeasor was responsible. So the purpose of the appeal procedure is to ensure that the tortfeasor or his insurer shall not pay other amounts as well.
(b) If the Commissioner is right there will be no recourse open to a compensator if it is demonstrated that benefits were not properly paid.
(c) The Commissioner has confused eligibility for benefits with attributability of benefits.
(d) The decision of the MAT determines the rights of the DHSS and the compensator.
(e) The claimant is not a party before the MAT.
(f) There is no public policy reason why the MAT should not come to a different conclusion from the SSAT.
(g) That the compensator is bound by a decision to pay benefits in which it had no opportunity to make representations is manifestly unjust and the hearing to determine the compensator's obligation to repay the DHSS would be unfair and in breach of Article 6 of the Human Rights Act 1998.
(h) If the Commissioner's decision is correct the MAT's function is restricted to determining whether the contents of the Certificate were accurately recorded. It is wrong because –
(i) Article 14(2) has a wider meaning;
(ii) The MAT is directed by Article 14(3) to take the decision of the court into account. This would be meaningless if the construction of the Commissioner was preferred.
(i) The decision of an Appeals Chairman in England in Eagle Star v Rolton (Unreported: 9 August 2000) helpfully reviews the issues involved in the comparable legislation in England and Wales and is to be preferred to the decision of the Commissioner.
Mr Weatherup QC did not seek to defend the Commissioner on this question. He accepted that there were two distinct procedures addressing different issues. The SSAT considers a claimant's entitlement to benefit. The MAT considers a compensator's claim about the attributability of the benefit to the accident. When the SSAT is determining eligibility it may, incidentally, consider the event which occasioned the claim for benefit. However, its jurisdiction is limited to determining whether the statutory conditions for entitlement to the particular benefit have been satisfied.
When the MAT is determining whether a particular event is a cause of the payment of benefit it may, incidentally, consider whether the claimant is entitled to the benefit. It is not retrying the issue of entitlement of benefit. Its jurisdiction is to determine whether the accident in question was a cause of the payment of the benefit. The MAT is not in principle bound by the decision of the SSAT.
The SSAT decision was based on an assessment of the applicant's capacity for work. The MAT decision was concerned with the attributability of the accident to the payment of benefit. The MAT decision stated that they had to accept the ruling of the SSAT that the appellant was incapable of all work from 22 December 1997 due to injury sustained in the relevant accident. This did not represent a finding of the SSAT and in any event did not bind the MAT.
The Commissioner considered that the MAT was correct to consider itself bound by the decision of the SSAT. She was wrong.
The Third Question
Mr Ringland QC submitted that the decision of the court included the order of the court. Guidance on award of damages is found in the "Guidelines for the Assessment of General Damages in Personal Injuries Cases in Northern Ireland". The award made it clear that the court found the plaintiff's injuries to be of a very minor nature and likely to have had only a short term effect on his fitness for work.
Mr Weatherup QC accepted that the decision of the court must include an order of the court but an order of the court must be of minimal value because it cannot inform the Tribunal on the issue of attributability. A small award may indicate significant contributory negligence. The MAT is not obliged to follow the decision of the court.
The Fourth Question
Mr Ringland QC submitted that the Commissioner was not correct. His relevant submissions were made, he said, when he was dealing with the second question.
Mr Weatherup QC accepted that the fourth question was a re-working of the second question. He submitted that if the court were to decide that there should be a re-hearing, the appropriate Tribunal to which the court should remit the case was the MAT.
The Social Security Administration (Northern Ireland) Act 1992 is the principal Act but there have been significant amendments. Part I deals with claims for and payments and general administration of benefits and provides for the making of regulations about claims for and payment of benefits. Part II provides for adjudication. Section 18 provides for adjudication by adjudication officers on any claim for income support. Section 20 provides for an appeal by a claimant from his decision to a social security appeal tribunal (SSAT). Section 21 provides for an appeal by a claimant from a SSAT to a Commissioner. No appeal lies under this section without the leave of a chairman of a tribunal or a Commissioner. Section 22 provides for an appeal on a question of law from any decision of a Commissioner to the Court of Appeal in Northern Ireland. Section 31 deals with appeals following reviews. Section 32 deals with appeals from decisions of a SSAT. Section 36 provides for the appointment of adjudication officers. Section 38 provides for panels of persons to act as members of SSATs. Neither an adjudication officer nor a member of a SSAT is required to have any medical qualification.
Section 48 provides that a MAT shall consist of a chairman and two medical practitioners.
Part IV of the Act was repealed before the events recurred which are relevant to this appeal.
In so far as the Act of 1992 applies, an adjudication officer appointed under Section 36 adjudicated on Mr McClelland's claim for Income Support under Section 18 and decided that he was capable of work from 22 December 1997. Mr McClelland appealed to a SSAT under Section 20 which allowed the appeal and made the findings to which the Commissioner referred. The jurisdiction conferred on the SSAT related to his entitlement to income support. By Section 20 Mr McClelland had a right of appeal to the SSAT. No-one else had that right. The adjudicating officer had the right to resist the appeal.
The adjudication officer could have appealed to a Commissioner on the ground that the decision of the SSAT was erroneous in point of law but on no other ground. He did not do so. The other persons afforded a right to appeal (under Section 21(3)) do not have any relevance to this appeal.
The Social Security Contributions and Benefits (Northern Ireland) Act 1992 plays a small part in this appeal. Part I deals with contributory benefits. Part VI deals with income related benefits, including income support. Section 123 provides for entitlement to income support in prescribed circumstances. Section 123(1)(d) makes it a condition that except in such circumstances as may be prescribed –
(1) he is available for, and actively seeking employment; …
Mr McClelland was receiving income support prior to the accident of 17 October 1996 because he complied with this condition. After the accident he applied for benefit as a result of the accident. He was not eligible for any benefit other than income support because he had not complied with the contribution conditions required of him. As a result of the decision of the SSAT he received income support.
It is not necessary to rehearse the legislation prior to 1997 which dealt with recoupment of benefits by the DHSS. The Social Security (Recovery of Benefits) (Northern Ireland) Order 1997 was in force when the SSAT made their decision that Mr McClelland was entitled to income support.
Article 2 defined "benefit" as including income support by reference to the Contributions and Benefits Act.
Article 3 provided that the Order applied in cases where –
(a) a person makes a payment … to … any other person in consequence of any accident … suffered by the other, and
(b) any listed benefits have, been or are likely to be, paid to … the other during the relevant period in respect of the accident.
By Article 5 "the relevant period" in the period of five years from the day on which the accident or question recurred or the date on which the person makes a compensation payment in final discharge of any claim arising out of the accident, whichever is the earlier.
Article 6 requires the person making the compensation payment (referred to as "the compensator") to apply to the DHSS for a certificate of recoverable benefits. The DHSS is required to issue a certificate.
Article 8 provides that a person who makes a compensation payment is liable to pay to the DHSS an amount equal to the total amount of the recoverable benefits. We set out Articles 13 to 15 in so far as they are applicable -
"Appeals against certificates of recoverable benefits
13(1) An appeal against a certificate of recoverable benefits may be made on the ground –
(a) that any amount, rate or period specified in the certificate is incorrect, or
(b) that listed benefits which have been, or are likely to be, paid otherwise than in respect of the accident, injury or disease in question has been brought into account.
(2) An appeal under this Article may be made by –
(a) the person who applied for the certificate of recoverable benefits, or
(3) No appeal may be made under this Article until –
(a) the claim giving rise to the compensation payment has been finally disposed of, and
(b) the liability under Article 8 has been discharged.
(5) Regulations may make provision –
(a) as to the manner in which, and the time within which, appeals under this Article may be made.
(b) as to the procedure to be followed where such an appeal is made, and
(c) for the purpose of enabling any such appeal to be treated as an application for review under Article 12.
(6) Regulations under paragraph 5(c) may (among other things) provide that the circumstances in which a review may be carried out are not to be restricted to those specified in Article 12(1).
Reference of questions to medical appeal tribunal
14(1) The Department shall refer to a medical appeal tribunal any question mentioned in paragraph (2) arising for determination on an appeal under Article 13.
(2) The questions are any concerning –
(a) any amount, rate or period specified in the certificate of recoverable benefits, or
(b) whether listed benefits which have been, or are likely to be, paid otherwise than in respect of the accident, injury or disease in question have been brought into account.
(3) In determining any question referred to it under paragraph (1), the tribunal shall take into account any decision of a court relating to the same, or any similar, issue arising in connection with the accident, injury or disease in question.
(4) On a reference under paragraph (1) a medical appeal tribunal may either –
(a) confirm the amounts, rates and periods specified in the certificate of recoverable benefits, or
(b) specify any variations which are to be made on the issue of a fresh certificate under paragraph (5).
(5) When the Department has received the decision of the tribunal on the questions referred to the tribunal under paragraph (1), the Department shall in accordance with that decision either –
(a) confirm the certificate against which the appeal was brought, or
(b) issue a fresh certificate.
(6) Regulations may make provision –
(a) as to the manner in which, and the time within which, a reference under paragraph (1) is to be made, and
(b) as to the procedure to be followed where such a reference is made.
(7) Regulations under paragraph (6)(b) may (among other things) provide for the non-disclosure of medical advice or medical evidence given or submitted following a reference under paragraph (1).
(8) In this Article `medical appeal tribunal' means a medical appeal tribunal constituted under section 48 of the Administration Act.
Appeal to Social Security Commissioner
15(1) An appeal may be made to a Commissioner against any decision of a medical appeal tribunal under Article 14 on the ground that the decision was erroneous in point of law.
(2) An appeal under this Article may be made by –
(a) the Department,
(b) the person who applied for the certificate of recoverable benefits, or
(3) Subsections (7) to (10) of section 21 of the Administration Act apply to appeals under this Article as they apply to appeals under that section.
(4) In this Article `Commissioner' has the same meaning as in section 167(1) of the Administration Act."
(a) The decision about entitlement to Income Support
There is a separate system for deciding whether a person is entitled to income support. At the time material to this appeal the Income Support (General) Regulations (NI) 1997 entitled a person to income support who (a) was incapable of work in accordance with the provisions of Part XIIA of the Contributions and Benefits Act and the regulations made thereunder (incapacity for work); (b) was treated as incapable of work by virtue of regulations made under Section 167D of that Act (persons to be treated as incapable or capable of work).
The Regulations are frequently changed but for the purposes of this appeal the Social Security (Adjudication) Regulations (NI) 1995 apply.
Mr McClelland made a claim for benefit under the relevant legislation after his accident on 17 October 1996. The DHSS allowed his claim for income support on the grounds that he was incapable of work. Doubtless they allowed his claim because it was supported by certificates from his general practitioner that he was unfit for work. Thirteen months later a medical practitioner appointed by the DHSS found him capable of work and an Adjudication Officer appointed under Section 36 of the Social Security (Administration) Act of 1992 decided that he was capable of work from 22 December 1997.
He had a right of appeal to a social security appeal tribunal (SSAT) constituted in accordance with Section 36 of the Act of 1992. Other persons who had a right to be heard on the appeal were the adjudicating officer and any other person appearing to the DHSS or the SSAT to be interested in the proceedings. Before the Commissioner and in the early stages of this appeal the appellant argued that it was an "interested" party and entitled to be heard on the appeal. But Mr Ringland QC for the appellant conceded that it was not an "interested" party.
The jurisdiction of the SSAT was limited to deciding whether Mr McClelland was entitled to income support because he was incapable of work. It was no part of their function to decide whether he was incapable of work because of his accident, although they must have read a report from a surgeon who examined him after the accident and seen certificates from his general practitioner. He may have appeared before them to be examined and to produce particulars and documents and to answer questions. He had a right to be heard and to be represented by another person whether having professional qualifications or not. The adjudication officer also had a right to be heard and to furnish documents and supply medical evidence or information provided by the medical practitioner who found Mr McClelland capable of work.
It so happened that Mr McClelland had already commenced proceedings against the driver and owner of the motor car who were insured by the appellants. In our view the appellants were entitled to furnish information including a medical report to the DHSS which could review any decision to award benefit or through the adjudication officer, could pass on such information to the SSAT. But they could only claim that they were "interested" if, as the compensators, they were affected. Their financial involvement as compensators could not be affected by the decision of the SSAT. There are other good reasons why they should not be parties to the proceedings, such as the need for confidentiality between the claimant and the Department and the other matters referred to by Mr Weatherup QC. If, however, they could show that they were "interested" in the proceedings, these other reasons would have to give way to their right to be heard and to be represented. They do not have this right. It is not necessary to cite authority: see Stroud, 6th Edition, Volume 2 pp1944,1945.
(b) The decision about attributability of benefit
The jurisdiction of the MAT is governed by Article 14 of the Recovery of Benefits Regulations is confined to the matters set out in Article 14(2).
Under Article 14(2) the questions which the medical appeals tribunal are required to consider include "(b) whether listed benefits which have been, or are likely to be, paid otherwise than in respect of the accident … in question have been brought into account". The tribunal is not obliged to take into account the decision of the SSAT or any other decision than is provided by Article 14(3) by which it is bound to take into account any decision of a court relating to the same, or any similar, issue arising in connection with the accident. The tribunal is defined as meaning a MAT under Section 48 of the Administration Act. Such a tribunal is required to have two medical practitioners and a chairman.
Article 17 provides that unless a court makes an order with the consent of the injured party and the person by whom the payment is to be made, the court shall in the case of each head of compensation listed in column (1) of Schedule 2 to which any of the compensation payment is attributable, specify in the order the amount of the compensation payment which is attributable to that head.
Schedule 2 provides, as a head of compensation, listed in column 1, compensation for earnings lost during the relevant period and benefits were listed as including income support. Article 19 requires the court to disregard benefits in assessing damages.
Article 25(2) provides that a person who receives or claims a listed benefit which is or is likely to be paid in respect of an accident … shall give the Department the prescribed information about the accident …
We do not intend to tie the hands of the MAT. They are entitled to examine the documents placed before the SSAT and study their findings and take them into account, but they are not obliged to do so. They are entitled to examine the documents placed before the court as well as the decision of the court but they must take the decision of the count into account. They must reach their own decision, having given such weight as they think fit to the information (if any) presented to them by the DHSS and by the compensator through the DHSS. Incidentally since 2 December 1999 the DHSS has become the Department of Social Development (DSD), the respondent in this appeal.
They may invite information from the person who met with the accident or others. Their decision is unfettered and can only be challenged on a point of law on appeal to a Commissioner.
We were referred to the decision of an Appeal Tribunal held at Manchester in the case of Eagle Star Insurance Co v David Rolton (Unreported: 9 August 2000). An issue before that Tribunal was whether the Tribunal was bound by findings of another Tribunal concerning entitlement to benefit, when it was considering whether a Certificate of Recoverable Benefits included benefits which had been paid otherwise than in respect of the relevant accident. They gave the following reasons for not following the decision of the Commissioner in the present appeal:
We entirely agree with the approach of this Appeal Tribunal.
After we had decided the appeal but before we had delivered judgment we were sent by the parties an Article entitled "CRU – Beating the DSS" by Christopher Camp which appeared in the December 2000 issue of the Journal of Personal Injury Law. He refers to the appeal service; in England and Wales the appeal service has superseded the MAT. In it he refers to the decision of Commissioner Brown and to the English decision, CCR/8023/1995. It will be apparent from our judgment that we agree with him and with counsel for the parties to this appeal that these decisions are wrong.
(c) The court order
The court order is the decision if no reasons are given and if reasons are given it is part of the decision. The attention of courts should be directed to Article 17 of the 1995 Order (or its successor) and the need to specify in the court order the amount attributable to each head of compensation listed in column (1) of Schedule 2. There was no reason why the Commissioner (or the
MAT) should not have been told, preferably on affidavit, that the special damage claimed was £3735 and that it was awarded, that no special damage was claimed for loss of earnings and that general damages awarded were £3000. If there was an admission of liability this could also have been stated. There is no reason to suppose that Deputy County Court Judge Garrett did not comply with Article 17 so that the MAT would have been aware that no claim for less of earnings was allowed by him. But the compensator should give notice to the plaintiff (claimant) that it is proposed to inform the Commissioner (or the MAT) of these matters. The MAT, is, of course, not bound by the decision.
We answer the Questions in the case stated as follows:-
(i) Yes, because there was no necessity to give notice to the compensator.
As the Commissioner was of the opinion that the MAT may have considered the appeal on its merits, we remit the appeal to the Commissioner. We declare and direct that she should state that the MAT is not bound by the decision of the SSAT and should refer the case to a differently constituted MAT.
We do not consider that under Section 38 of the Judicature (Northern Ireland) Act 1978 we have power to remit the case directly to a MAT as requested by Mr Weatherup QC as the original court to which we have power to remit is the Commissioner: see Section 38(1)(f) of the Act. Otherwise we would have done so.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND