England and Wales Court of Appeal (Civil Division) Decisions

Case No: 1999/0991/A2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(MRS JUSTICE SMITH)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 1^st December 2000

LADY JUSTICE HALE:

1. The claimant appeals from the order of Mrs Justice Smith who on 24 March 1999 gave judgment for the defendant in an action for misfeasance in public office.

2. Mrs Amoo-Gottfried has practised as a lawyer since 1972, with a short maternity break in 1979 to 1981. She has her own small firm, specialising in criminal and family law. In 1985 she began acting as a duty solicitor in both magistrates' courts and police stations in South London. There is one scheme covering magistrates' courts and another providing a 24 hour service in police stations. No doubt membership of either scheme plays an important part in any small High Street solicitors' practice such as hers. Between 1993 and 1995 she was excluded from the police stations scheme, readmitted to it, not reselected for either scheme, reselected for courts but not for police stations, and then reselected for both, in a bewildering series of hearings, appeals and reviews. The matter was only resolved after she resorted to judicial review in August 1995 and even then there was a delay in restoring her to the rota. She could be forgiven for thinking that she was being 'messed about' and wanting to know why. She could be forgiven for suspecting the motives of those concerned. Whether in fact there was an improper purpose in what took place is another question.

The duty solicitor schemes

3. In 1989 administration of the duty solicitor schemes became the responsibility of the Legal Aid Board under the Legal Aid Act 1988. At the beginning of this story the position was governed by the Legal Aid Board Duty Solicitor Arrangements 1992, made by the Legal Aid Board under regulations 6(3) and 7(1) of the Legal Advice and Assistance Regulations 1989. These were later replaced by the Legal Aid Board Duty Solicitor Arrangements 1994. References are to the 1994 arrangements unless otherwise stated.

4. These provide for a three tier committee structure of local, regional and national duty solicitor committees. They have many responsibilities apart from the selection and discipline of duty solicitors. They may act through sub-committees, and frequently did so in the course of this history, but for simplicity I will usually refer only to the relevant tier. At the top is the national Duty Solicitor Committee. Among its duties, set out in paragraph 5(1), are to:

'(a) review decisions of a regional committee . . . and appeals from a local committee . . .

(b) give such directions and guidance to regional committees as it considers necessary.'

Regional committees' general duties are set out in paragraph 15, which is prefaced as follows:

'In accordance with the provisions of regulations 6 and 7 of the Legal Advice and Assistance Regulations 1989 and subject to any directions and guidance given it by the Duty Solicitor Committee in consultation with the appropriate local law society every regional committee shall administer these Arrangements within its region...'

This is underpinned by section 11(4) of the 1988 Act:

'A committee shall act in accordance with such directions as the Board may from time to time give . . . .'

5. Solicitors wishing to join the scheme must apply to the local committee (para 31) and be interviewed (para 34). They must fulfil the prescribed selection criteria (para 32 for magistrates' courts; para 33 for police stations). The criteria in the 1994 arrangements are more stringent than the 1992 criteria. Solicitors who meet them must be admitted to the scheme (para 35). If rejected, a solicitor may appeal to the regional committee (para 37). The appeal is determined by rehearing (para 15(7)(a)). The regional committee may determine the appeal (para 15(7)) or, in the case of procedural defect or failure to follow national guidance, refer the case back to the local committee for consideration (para 15(7)(g)). If the solicitor is dissatisfied with the determination of an appeal by the regional committee, she may apply to the national committee for a review (para 16(1)).

6. Duty solicitors are subject to reselection at least every five years (para 38(1)). The reselection takes effect on 31 December of the fifth year following their admission (para 38(4)). There are prescribed criteria for reselection (paras 39, 40). If satisfied that a solicitor meets them, the committee must reselect her; if not, she must be invited for interview (para 38(3)). A duty solicitor who is not reselected may appeal to the regional committee (para 28(1)), after which the same provisions apply as to other appeals.

The history

7. Mrs Amoo-Gottfried's problems began in June 1993 when the local committee excluded her from the police station scheme because she had used unauthorised representatives for work referred to her under the scheme. In September 1993, the regional committee, chaired by Mr Robin Cross, allowed her appeal and reinstated her as from 1 October 1993.

8. Before this, however, she had applied on 7 December 1992 to her local committee for reselection for both schemes in 1993. She was interviewed on 16 November 1993 but not reselected. She appealed to the regional committee. The regional committee, again chaired by Mr Cross, heard her appeal on 9 March 1994 and reselected her for the magistrates' courts but not for the police stations scheme. She applied to the national committee for a review. Written arguments were submitted on her behalf by Mr Rosen, a solicitor who had represented her at the appeal hearing. On 6 June 1994 they decided that the regional committee should not have rejected her appeal 'on the quality of her advice based only on one case' and referred it back to the regional committee for reconsideration.

9. This took place on 15 August 1994, this time chaired by Mr David Parry (as he then was). She was interviewed at some length. After she had left the meeting, Mr Craig, the then group duty solicitor manager, was asked to check how many claims had been submitted by her firm since January. She was not given an opportunity of dealing with the information reported, which appeared to cast doubt upon the amount of work she said that she had done. The committee rejected her appeal.

10. She applied once more to the national committee for a review. Her statement of reasons was prepared by Mr Anthony Thornton QC (as he then was). The review sub-committee of the national committee, consisting only of Mr Ray Forbes and Mr George Taylor, met on 5 December 1994. Its decision is minuted thus:

' . . . the test which should have been applied . . . should have been the continued ability of Mrs Amoo-Gottfried to meet the adequate experience criterion. In addition, the Regional Committee should not have asked for information about Mrs Amoo-Gottfried's volume of work to be obtained after she had withdrawn from the appeal hearing so that she was unable to respond to the findings.

The Review Committee therefore decided that the Regional Committee should, in view of the above findings and the previous history of this matter, allow Mrs Amoo-Gottfried's appeal so that she be readmitted to the South London 24 hour scheme.'

These words were quoted to Mrs Amoo-Gottfried in a letter dated 22 December 1994 from Simon Hillyard, National Duty Solicitor Coordinator. This also informed her that Mr Craig was

trying to arrange as sub-committee meeting of the regional committee so that the findings of the national review sub-committee could be considered.

11. That meeting was arranged for 19 January 1995. Mr Parry was a member. Mrs Amoo-Gottfried was invited to attend but decided not to do so. There were two very different views of the purpose of the meeting. Mrs Amoo-Gottfried took the view that her attendance was unnecessary because the regional committee had already been told what to do by the national committee. The regional committee, however, were expressly advised otherwise in a memorandum drafted by Mr Craig but amended by Mr Hillyard and by Mr Taylor. After quoting the decision of the National Committee it continued:

'The Duty Solicitor Committee did not exercise its powers under paragraph 5(1)(b) of the Arrangements to direct the Regional Committee to take this course of action, and therefore the appeal committee is not bound by this recommendation and retains its discretion on how to deal with this issue.'

It went on to warn that, if they did want to adopt an alternative course they should show their reasoning for not following the resolution of the national committee. If they decided to interview her, they would have to apply the new and more stringent criteria in the 1994 Arrangements.

12. The regional committee took issue with a number of points in Mr Thornton's statement of reasons. They considered it unfortunate that they had not had an opportunity to comment upon it. Further:

'The Regional Committee was concerned that to appoint someone who did not meet the criteria required by the reselection criteria to undertake work at a police station would not be in the interests of those requiring help under the scheme, and noted that the review committee had failed to identify its reasons for making the recommendation that they had.'

The committee identified a number of issues relating to the quantity and quality of her work upon which they would have wanted further information from Mrs Amoo-Gottfried had she attended and concluded that they were unable to satisfy themselves that she could satisfy the requirements in the 1994 Arrangements and so felt unable to allow her appeal.

13. Mrs Amoo-Gottfried applied again to the national committee for a review. Her statement of reasons was drafted by Mr Patrick Elias QC (as he then was). He argued that the resolution of 5 December 1994 was in fact a binding direction to the regional committee which they had to follow. The review sub-committee met on 24 April 1995 and resolved as follows:

'The Committee found that the decision of 5 December 1994 constituted a direction under paragraph 5(1)(b) of the Arrangements and that therefore Mrs Amoo-Gottfried should be reinstated onto the South London police station schemes. For the avoidance of doubt, the Committee therefore made a direction under paragraph 5(1)(b) of the

Arrangements that Mrs Amoo-Gottfried should be reinstated to the South London police station schemes.'

14. This was put before the regional committee, chaired by Mr Cross, on 21 June 1995. Mr Parry was among those present. Not surprisingly, the committee wanted an explanation. Mr South, who had taken over from Mr Craig, advised them that he understood that there had been a procedural deficiency in the decision to exclude her; they might feel that their decision had been correct; nevertheless they were bound by the direction; if judicial review proceedings were instituted as a result of failure to implement the direction, the Board might not be prepared to indemnify their costs. The committee decided that it wanted clarification of the reasons for the direction before making a decision and the matter was adjourned to the next meeting. The committee 'wished to make it clear that it was not refusing to act on upon the direction, but was merely seeking clarification of the circumstances in which it had been given,'

15. On 15 August 1995, Mrs Amoo Gottfried was given permission to move for judicial review of this decision and an expedited hearing was ordered.

16. Mr South obtained an account of the background and the decision from Mr Hillyard. This was put before the committee for its next meeting on 11 September 1995. The reason

given for making the direction was 'because of the lengthy nature of the proceedings . . . which had included procedural errors resulting in Mrs Amoo-Gottfried being excluded from the South

London 24 hour scheme since late 1993.' The regional committee reinstated her, but 'very reluctantly and with expressions of great dismay'.

17. In fact, the rota had to be made up and circulated no less than four weeks before the previous one expired (para 27(4)), in this case before the end of August. Although she could go on the list for referrals, she could not be included on the rota until 1 February 1996.

18. She had however attained the first objective of her judicial review application. She later applied to add a claim for damages for negligence, breach of statutory duty and misfeasance in public office. The first two were struck out but her misfeasance claim proceeded as if begun by writ.

The judge's findings

19. The judge heard evidence from Mrs Amoo-Gottfried, Mr Robin Cross (chair of the regional committee) and Mr (now Judge) David Parry (who had been present at all the relevant meetings) and found that all three were witnesses of truth. She found that it was at least arguable that the decision of the national committee on 5 December 1994 was ultra vires. When the regional committee reheard the case on 19 January 1995, they may have been acting unlawfully,

' . . . but I have no doubt whatever that they acted in good faith, relying on the advice of their secretary who told them that the advice before them had been considered by the Board's legal department. They honestly believed that they were entitled to do as they did. They may have been wrong. In any event, they believed that they were following the usual practice, and in that respect, I am sure they were right. They also believed that they were acting in accordance with their public duty by considering whether the plaintiff satisfied the criteria for re-selection to the Scheme. It follows that although their actions may have been unlawful, they did not deliberately or knowingly act unlawfully, nor did they fail to make such enquiries as a reasonable and honest group of men would have made before acting.'

20. Again, she found it at least arguable that the national committee acted unlawfully in making the April order. There was a legal requirement to give the claimant reasons for the decision. That requirement gave rise to a reasonable expectation in the regional committee that they would learn of those reasons.

'In the particular circumstances of this case, where there had been such confusion over the order made in December 1994 and the advice given to the Regional Sub-committee in January 1995, I consider that the Regional Committee were more than justified in their bafflement and concern when faced with a wholly unexplained direction in June 1995. I accept that it appeared to the Regional Committee that the National Committee had allowed the plaintiff to bypass the need to satisfy the criteria for re-selection, as set out in the Arrangements. I accept that the Regional Committee, acting through three differently constituted appeal sub-committees in three different occasions, had honestly concluded that the plaintiff did not satisfy the criteria for re-selection . . .

I have real sympathy with the position of the Regional Committee on 21 June. No group of people should be expected to exercise their public functions in such circumstances. . . .

In my judgment, the Regional Committee's wish to receive the National Committee's reasons for overriding their decisions was reasonable. . . . The wish for them was motivated by a genuine desire to understand the reasons before they complied with the

direction and re-admitted the plaintiff to the Scheme. It was not motivated by any desire to harm the plaintiff or any reckless disregard of her interests.

I find that the Regional Committee did not know that they were not entitled to reasons. They were uncertain about it and I can well understand why. . . .

I conclude that although the defendant knew that it would be unlawful to refuse to obey the direction, they did not know that it would be unlawful to adjourn . . . They were not actuated by malice towards the plaintiff, nor did they show reckless disregard for her interests. They honestly thought they were taking a proper course in the public interest and in accordance with their public duty.'

21. These are the clearest possible findings as to the lack of knowledge of any unlawfulness in their actions, as to the honesty of their beliefs that they were entitled to do as they did, and as to the complete propriety of their motives for doing so. It might be thought that the facts found in this case were far removed from any sensible concept of misfeasance in public office.

Misfeasance in public office

22. For better or worse, our law distinguishes between those actions of a public authority which may give rise to a claim for damages, those which may be set aside in judicial review, and those which may be criticised as maladministration by the appropriate public sector ombudsman. There can be little doubt that what happened in this case was maladministration, although in my view the responsibility for that lay with the national rather than the regional committee.

23. The purpose of the Legal Aid Act 1988 is to establish a framework for the provision of 'advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means.' (s 1) The system of appointing duty solicitors has to be fair to the solicitors who want to be appointed, to the public who may need their services and to the public who have to pay for them. Solicitors who meet the selection criteria are entitled to be appointed but the Board has no power to appoint those who do not. The factual assessment of competence is done, first by the local committees and, on appeal, by the regional committees. At the time in question, the national committee exercised a reviewing function only. It did not find facts. If facts still had to be found, it was normal practice to send the matter back. That is what the national committee thought that it was doing in December 1994. Unfortunately the resolution was worded in apparently mandatory terms. Furthermore, Mrs Amoo-Gottfried was told one thing whereas the regional committee was told something different. This enabled the argument to be made that the decision was in fact a binding direction when this had been neither expressed nor intended. When confronted with this argument the national committee does not appear to have sought ways of reconciling the conflicting duties involved. It departed from previous practice and baldly commanded the regional committee to do as it said without any explanation either for the apparent change of mind or for the departure from practice and principle. In those circumstances it is scarcely surprising that a conscientious regional committee did as it did. But had the December maladministration not taken place, there would have been a proper rehearing

in January. The claimant either would or would not have satisfied the regional committee of her eligibility. Either way, the maladministration could not have caused the damages claimed in this case.

24. In any event, as Mr Justice Schiemann (as he then was) held in R v Knowsley Metropolitan Borough Council, ex parte Maguire (1992) 90 LGR 653, at p 664, 'we do not have in our law a general right to damages for maladministration'. Maladministration is a wider concept than unlawfulness. But even an unlawful act of a public authority does not in itself give rise to an action for breach of statutory duty: X (Minors) v Bedfordshire County Council [1995] 2 AC 173. There may be liability if another recognised tort is committed, but the ordinary principles of the tort of negligence place serious limits on the ambit of claims for financial loss and psychiatric injury. Generally speaking, therefore, the remedy for those who are victims of unlawful decisions by public authorities is to have those decisions set aside in judicial review. The remedy for maladministration lies with the various public sector ombudsmen, who can recommend but not require compensation in appropriate circumstances.

25. Distinguished voices have from time to time been raised against these principles. In Maguire, Mr Justice Schiemann referred to the recommendations of the Justice/All Souls Review of Administrative Law, in Administrative Justice: some necessary reforms (1988), para

11.33. More recently, Professor Sir William Wade and Dr Christopher Fawcett, in Administrative Law, 8th ed at p 771, have said this:

'Losses caused by bona fide but mistaken acts of government may have to be suffered just as much when they are invalid as when they are valid. This unjust doctrine is in need of reform.'

Unless some other tort is committed, therefore, liability depends upon 'malice' or 'bad faith'. This means that the tort of misfeasance in public office is an exception, as pointed out by Lord Steyn in the leading case of Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220, at p 1230, to 'the general rule that, if conduct is presumptively unlawful, a good motive will not exonerate the defendant, and that, if conduct is lawful apart from motive, a bad motive will not make him liable': Winfield & Jolowicz on Tort, 15th ed (1988), p 55. The rationale of the tort is that executive or administrative power 'may be exercised only for the public good' and not for ulterior or improper purposes: Jones v Swansea City Council [1990] 1 WLR 54, at p 85F, per Nourse LJ.

26. Using the defendant's state of mind to define the tort is not without difficulty. The criminal law traditionally distinguishes between motive and intention. Intention to do the prohibited deed or produce the prohibited outcome is what matters, rather than the reason

behind it. The criminal law also includes those who wilfully turn a blind eye to the consequences of their actions as if they have intended them. But the criminal law also has a

prohibited act or a prohibited outcome. As currently defined, the tort of misfeasance in public office does not necessarily involve an unlawful act; nor does it necessarily involve interference with an established right.

27. Reading the recent cases, one has the sense that all the judges who have wrestled with this problem have felt that they know what they are trying to describe - and do so seeking analogies from their own area of the law - but recognise the difficulty in formulating propositions which will encapsulate that principle without including other actions by public officers which may cause just as much damage, be just as susceptible to judicial review, but do not (in the present state of the law) give rise to a claim for damages. What in my view they are trying to describe is the exercise of power by a public official, not for the purpose for which it was given, but for some ulterior or impermissible purpose, knowing or being reckless as to whether it will damage the plaintiff.

28. Thus in Bourgoin SA v Ministry of Agriculture, Fisheries and Foods [1986] QB 716, the assumed facts (see pp 734-5) were that the Minister had revoked the plaintiffs' licence in order to protect English turkey producers against competition from French turkey producers, that he knew that this was in breach of the UK's obligations under article 30 of the EEC treaty, that he knew that the act would and was calculated to injure the plaintiffs in their businesses, and that he knew that protecting English turkey farmers was not a purpose for the achievement of which the relevant powers were conferred upon him. In those circumstances, as Lord Justice Oliver held, at p 777G, it was

'. . . immaterial that one purpose was dominant and the second merely a subsidiary purpose for giving effect to the dominant purpose. If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not "intend" the consequences of the act or that the act was not "aimed" at the person who, it is known, will suffer them.'

29. In Jones v Swansea City Council [1990] 1 WLR 1453, the council had originally resolved in favour of allowing the plaintiff to use premises leased to her by the council as a club; the plaintiff's husband was at that time a member of the majority group on the council; there was then an election and a change of control; the council resolved to rescind the original resolution. The judge was not satisfied that malice had been proved against the leader of the new majority or against any others who voted. Had that been established, however, this would clearly have been an example of using the powers of public office for an improper purpose.

30. The leading case is now Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220. The main issue on this aspect of the case was whether knowledge of or recklessness as to the likely consequences to the victim of the official's conduct, rather than mere foreseeability, was a necessary ingredient of the tort. Mr Justice Clarke (as he then was) at first instance, a majority of the Court of Appeal, and all of their Lordships held that it was. The

case law both here and elsewhere in the common law world was extensively surveyed both at first instance and in the Court of Appeal. The summary of the conclusions drawn by Mr Justice Clarke, reported at [1996] 3 All ER 558, at pp 632 to 633, was quoted by Mrs Justice Smith in the present case and broadly approved both by the majority of the Court of Appeal and in the House of Lords.

31. Lord Steyn set out, at pp 1230 to 1236, six requirements for the tort: (1) that the defendant is a public officer; (2) that he exercised power as a public officer; (3) that he did so in a particular state of mind; (4) that the claimant has a sufficient interest to sue; (5) that the defendant's exercise of power caused the loss; and (6) that the loss claimed is not too remote. In that case, as in this, requirements (3) and (6) were in issue: they are closely linked as they both depend upon the state of mind of the defendant.

32. As to (3), Lord Steyn said this, at p 1231B:

'The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.'

That case, as this, was not one of targeted malice but of the second form of the tort:

'The basis for the action lies in the defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals. It is not every act beyond the powers vesting in a public officer which will ground the tort. The alternative form of liability requires an element of bad faith. . . .'

However:

' . . . reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act committed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.'

This is recklessness in the subjective sense used in R v Cunningham [1957] 2 QB 396 rather in the objective sense used in R v Caldwell [1982] AC 341:

' . . . counsel for the plaintiffs accepted that only reckless indifference in the subjective sense will be sufficient. This concession was rightly made. The plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act.'

As to the consequences to the plaintiff, mere foreseeability is not enough, but recklessness is:

'Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is therefore sufficient in law.'

33. While all their lordships were agreed on the main issue, they did not express themselves in exactly the same way on the ingredients of the tort. Lord Millett in particular said this, at p 1273g:

'The tort is an intentional tort which can be committed only by a public official. From this two things follow. First, the tort cannot be committed negligently or inadvertently. Secondly, the core concept is abuse of power. This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose. These expressions are often used interchangeably; in some contexts one will be more appropriate, in other contexts another. They are all subjective states of mind.

It is important to bear in mind that excess of power is not the same as abuse of power. Nor is breach of duty the same as abuse of power. The two must be kept distinct if the tort is to be kept separate from breach of statutory duty, which does not necessarily found a cause of action. Even a deliberate excess of power is not necessarily an abuse of power. Just as a deliberate breach of trust is not dishonest if it is committed by the trustee in good faith and in the honest belief that it is for the benefit of those in whose interests he is bound to act, so a conscious excess of official power is not necessarily dishonest. The analogy is closer than may appear because many of the old cases emphasise that the tort is concerned with the abuse of a power granted for the benefit of and therefore held in trust for the general public.'

He went on, at p 1274b, to discuss the two limbs:

'The first limb, traditionally described as "targeted malice", covers the case where the official acts with intent to harm the plaintiff, covers the case where the official acts with intent to harm the plaintiff or a class of which the plaintiff is a member. The second is said to cover the case where the official acts without such intention but in the knowledge that his conduct will harm the plaintiff or such a class. I do not agree with this formulation. In my view the two limbs are merely different ways in which the necessary ingredient of intention is established. In the first limb it is established by evidence; in the second by inference.'

After referring to Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716, he continued, at p 1275a:

' . . . the real difference between the two limbs lies in the starting point. If the plaintiff can establish the official's subjective intention to exercise the power of his office in order to cause him injury, he does not need to establish that the official exceeded the terms of the powers conferred upon him. If, on the other hand, the plaintiff can establish that the official appreciated that he was acting in excess of his powers conferred upon him and that his conduct would cause injury to the plaintiff, the inference that he acted dishonestly or for an improper purpose will be exceedingly difficult and usually impossible to rebut.'

This appeal

34. Mr Supperstone's argument on behalf of the appellant is simple. The December resolution was a binding direction. Whatever may have been the position in January, the regional committee were left in no doubt about that in June. Mr Cross knew that they had to obey. The appellant was entitled to reasons from the national committee but they were not. They were not therefore even entitled to ask. The judge was wrong to hold that it was reasonable for them to do so. They were not entitled to delay implementing the direction until

they had done so. The judge was wrong to hold that they did not know that it would be unlawful to adjourn. At the very least they were reckless both as to the lawfulness of their

actions and as to the consequences for the appellant. Hence the second limb of the tort is made out, at the latest from 21 June 1995.

35. Mr Supperstone did not press his argument in relation to the January decision with great force. He did maintain that it was the clear effect of the resolution, rather than what the committee thought it was doing, which mattered. However, in the light of all the factors referred to by the judge - the interpretation given to the resolution in the memorandum from Mr Craig, and the departure both from usual practice and from principle which any different interpretation would have meant - it would be difficult indeed to conclude that the committee knew that what it was doing was unlawful or acted in reckless indifference to whether or not it was so.

36. The June meeting presents more difficulty, because this time the advice that they must follow the direction was unequivocal. It is, however, important to see a decision such as this in its proper context. The context is legislation providing a framework for offering legal services to members of the public at public expense. The context is not providing a livelihood for lawyers. The Arrangements do contemplate that all lawyers who prove themselves eligible should be placed on the scheme. There are no doubt very good reasons for that: the scheme should not be

'jobs for the boys' or the preserve of a limited number of practitioners. The public should have access to a wide range of lawyers. Hence those administering the scheme have a duty to be fair to the lawyers involved: and the procedures go to very considerable lengths to ensure this. But

their principal aim must be to protect both the clients and the public purse from lawyers who do not have the necessary competence and experience to do the job. As Judge Parry put it in his affidavit of 4 June 1996:

'Our duty was not only to individual legal practitioners but primarily to those who would be seeking to utilise the Duty Solicitor Scheme.'

37. This is a crucial difference between the facts of this case and those assumed in Bourgoin. Whether or not the committee were entitled to do as they did, they were doing so in order to further the main purpose of the legislation. They were not doing so arbitrarily, out of prejudice, or favouritism, or any of the other improper motives which might have been alleged in this case.

38. Given the purpose of the legislation, there was room for legitimate doubt about whether the order which they were being expected to obey was itself lawful. To suggest that the Regional Committee should have sought judicial review of the national committee's decision is fanciful. There are contexts in which refusal instantly to obey an order, even if it is or may be unlawful, is itself unlawful. But there are other contexts in which it cannot be unlawful to seek

to reassure oneself that the order is indeed lawful before obeying it. Indeed, there are contexts in which it is one's duty to do so. There are obviously cases in which there is room for legitimate doubt about what to do for the best.

39. The point, as the judge so rightly appreciated, is not what was or was not in fact lawful at the time, but whether the committee had an honest belief that it was lawful to do as it did. She found that it had. In my view it would have been surprising if she had reached any other conclusion. In any event it was a conclusion clearly open to her on the evidence which this court cannot disturb.

40. I would dismiss this appeal.

LORD JUSTICE MANTELL:

41. I agree.

LORD JUSTICE OTTON:

42. I also agree.

Order: Appeal dismissed with costs. Application for permission to appeal to House of Lords refused.