ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MR JUSTICE FOSKETT)
REF NO: C022412009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY,
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE STANLEY BURNTON
| THE QUEEN (on the application of) SHARON SHOESMITH
|- and -
|OFSTED & ORS
Mr James Eadie QC and Mr Clive Sheldon (instructed by The Treasury Solicitor) for the Secretary of State for Education
Mr Tim Ward and Mr Ben Lask (instructed by The Treasury Solicitor) for OFSTED
Ms Ingrid Simler QC and Mr Akash Nawbatt (instructed by Legal Services) for Haringey London Borough Council)
Hearing dates : 28, 29, 30 March 2011
Crown Copyright ©
Lord Justice Maurice Kay :
"She was plainly very highly thought of within the Borough and continued to be highly thought of by her colleagues within Haringey until the events with which this case is concerned."
A brief description of the facts
The Judgment and Order of Foskett J
"was simply derived from a duty to carry out a bona fide and open-minded inspection into what they found and to report accordingly." (Judgment, paragraph 483).
OFSTED had discharged this obligation in very difficult circumstances.
"the traditional safeguards concerning the rights of an individual to a fair hearing and/or a fair opportunity to put his or her case, whilst not removed totally, of necessity assumed a considerably lower profile than it might otherwise have done." (Judgment, paragraph 387).
"an urgent Joint Area Review of safeguarding and promoting the welfare of children in Haringey"
"The Review will need to undertake an urgent and thorough inspection of the quality of practice and management of all services which contribute to the effective safeguarding of children in the local area. It will be important to ensure rigorous scrutiny of the quality of practice and decision-making by front-line workers and their managers and of the effectiveness of management practice and performance management systems in all relevant agencies Given the importance of urgency of these matters, I request that a first report should be submitted to me by 1 December 2008."
The usual time frame for a JAR is five months. However, there is no challenge to the decision of the Secretary of State to request a JAR on his stated terms.
"(1) Any two or more of the persons and bodies to which this section applies must, at the request of the Secretary of State
(a) conduct, in accordance with a timetable drawn up by them and approved by the Secretary of State, a review of children's services provided in
(i) the area of every children's services authority in England;
(ii) the areas of such children's services authorities in England as may be specified in the request;
(b) conduct a review of such children's services provided in the area of such children's services authority in England as may be specified in the request.
(2) Any two or more of the persons or bodies to which this section applies may conduct a review of any children's services provided in the area of a particular children's services authority in England.
(3) The purpose of a review under this section is to evaluate the extent to which, taken together, the children's services being reviewed improve the well-being of children (and in particular to evaluate how those services work together or improve their well-being).
(4) The persons and bodies to which this section applies are
(a) the Chief Inspector of Schools;
(d) the Commission for Healthcare Audit and Inspection ;
(f) the Chief Inspector of Constabulary
(5) Reviews under this section are to be conducted in accordance with arrangements made by the Chief Inspector of Schools.
(6) Before making arrangements for the purposes of reviews under this section the Chief Inspector of Schools must consult such of the other persons and bodies to which this section applies as he considers appropriate."
"The inspection has identified a number of serious concerns in relation to safeguarding of children and young people in Haringey. The contribution of local services to improving outcomes is inadequate and needs urgent and sustained attention."
Its ten "main findings" comprised the following:
" insufficient strategic leadership and management oversight of safeguarding of children by elected members, senior officers and others within the strategic partnership;
managerial failure to ensure full compliance with some requirements of the inquiry into the death of Victoria Climbiι, such as the lack of written feedback to those making referrals to social care services
The local safeguarding children board (LSCB) fails to provide sufficient challenge to its member agencies. This is further compounded by the lack of an independent chairperson.
Social care, health and police authorities do not communicate and collaborate routinely and consistently to ensure effective assessment, planning and review of cases of vulnerable children
Too often assessments of children , in all agencies, fail to identify those who are at immediate risk of harm and to address their needs.
The quality of front-line practice across all agencies is inconsistent and not effectively monitored by line managers.
Child protection plans are generally poor.
Arrangements for scrutinising performance across the council and the partnership are insufficiently developed and fail to provide systematic support and challenge to both managers and practitioners.
The standard of record keeping on case files across all agencies is inconsistent and often poor.
There is too much reliance on quantitative data to measure social care, health and police performance, without sufficiently robust analysis of the underlying quality of service provision and practice."
There is no challenge to the rationality of these findings.
"Our concern was how the system worked as a whole. We were involved in a wide ranging evidence-gathering exercise in order to try to reach an overall assessment of the way in which the different children's services in Haringey were working, and working together. We were looking across the board at the quality of safeguarding practice at all levels of the relevant organisations. We were not seeking to make, or test, allegations against any particular individuals."
"assure the competence of leadership and management in all areas of children's services and develop clear and effective accountability structures."
The requirements of section 20
"On Friday 14 November, we held a meeting with representatives of the other inspectorates (HMIC and the Healthcare Commission). We agreed both the scope of the inspection and the processes that we would use. This included the key judgments against which the evidence would be assessed, the methodology to be deployed, and the inspection timeline and the team composition.
There was some debate about the specific role of each inspectorate in the JAR, and it was agreed which aspects of the inspection process each of the inspectorates would focus on. We also discussed the approach that OFSTED proposed to take in relation to feedback. None of the other inspectorates disagreed with this."
"OFSTED was engaged to look into the workings of a department of which [Ms Shoesmith] was head and to report on what they found. [She] was, within the limits of the very truncated process, kept abreast of what was being revealed during the inspection. For my part, I cannot see what else, realistically, could have been done."
"What I do not think any individual truly had, because of the limited timescale for the inspection and the media presence surrounding it, was a full, fair and considered opportunity to say something about their personal involvement in the system that operated within Haringey." (Judge's emphasis)
"immediate appropriate support and challenge to the local authority to ensure that comprehensive and effective safeguarding arrangements for children are established."
And in its recommendations to Haringey it made no reference to the fate of Ms Shoesmith.
"OFSTED's duty of fairness was simply derived from a duty to carry out a bona fide and open-minded inspection into what they found and to report accordingly."
2. The Secretary of State
"(2) If the Secretary of State is satisfied that a local education authority are failing in any respect to perform any function to which this section applies to an adequate standard (or at all), he may exercise his powers under subsection (4), (4A) or (4B).
(4) The Secretary of State may under this subsection give the authority or an officer of the authority such directions as the Secretary of State thinks expedient for the purpose of securing that the function is performed on behalf of the authority by such person as is specified in the direction; and such directions may require that any contract or other arrangement made by the authority with that person contains such terms and conditions as may be so specified.
(4A) The Secretary of State may under this subsection direct that the function shall be exercised by the Secretary of State or person nominated by him and that the authority shall comply with any instructions of the Secretary of State or his nominee in relation to the exercise or function.
(4B) The Secretary of State may under this subsection (whether or not he exercises the power conferred by subsection (4) or (4A) in relation to any function) give the authority or an officer of the authority such other directions as the Secretary of State thinks expedient for the purpose of securing that the function is performed to an adequate standard."
"(a) pursuant to [section 497A(4B)] he directs that:
(i) the Council shall appoint until 31 December 2008 and on such terms and conditions as the Secretary of State agrees John Coughlan as their Director of Children's Services, in accordance with section 18(1) of the Children Act 2004 for the purpose of the functions conferred on or exercisable by the Council which are specified in section 18(2) of the Children Act 2004; and
(ii) the Council shall appoint Libby Blake as Mr Coughlan's Deputy on such terms and conditions as the Secretary of State agrees; and
(b) pursuant to section 7A of the Local Authority Social Services Act 1970 that the Council shall appoint Graham Badman to chair the LSCB."
"In their summary judgment, the inspectors say that there [is] insufficient management oversight of the Assistant Director of Children's Services by the [DCS] and Chief Executive ."
"Whether the opinion represented the reality of the position within Haringey or not , it is unfortunate (and, one has to say, intrinsically unfair) that it was repeated in such a public setting without [Ms Shoesmith], or indeed her Deputy, having had a full and fair opportunity to refute it. It went to their respective abilities and competence. Indeed, it was a public comment such as this, taken along with comments about 'fitness for office', that is arguably more likely to have affected the future careers of [Ms Shoesmith] and her Deputy than the actual decision to replace them because of weaknesses found in the system within Haringey for which they held ultimate responsibility."
"I undoubtedly recognise the force of the petition from your newspaper, and right across the country many, many people, millions of people have been affected the result of my direction today to Haringey is that the [DCS] will be removed immediately from her post. Her employment relationship is with Haringey and so the normal employment and legal procedures will take place; but I have to say, I think most people will look at this report, look at the clear evidence of management failures and say that this kind of failure should not be rewarded with compensation or payoffs That's a matter for Haringey. I have to say I would be astonished if elected members in Haringey chose to do that, but it's a matter for them. "
"I have removed that official from her post, from her statutory responsibilities, and I've directed a new person to go in and take over those responsibilities. The employment relationship is for Haringey and that's something I know they will [be] considering this afternoon and immediately."
(1) Procedural fairness
"At all events, my ultimate conclusion is that (a) since what the Secretary of State was engaged in was not a true disciplinary process, (b) the issue had a real local and national dimension that affected vulnerable children, and (c) since he was entitled to adjudge it to be urgent, the traditional safeguards concerning the rights of an individual to a fair hearing and/or a fair opportunity to put his or her case, whilst not removed totally, of necessity assumed a considerably lower profile than it might otherwise have done I do not consider that what was understood by the Secretary of State to have occurred during the OFSTED inspection rendered the process adopted unfair. That the whole process became subverted by the personalisation of the issues was unfortunate. It would have been better had it not. As I have already observed, it is, to my mind, very doubtful if [Ms Shoesmith] really did have a true opportunity to put her point of view persuasively to the inspectors because of the distractions caused by the media interest in what was going on in Haringey, particularly in relation to her, during the inspection week. Threats made to her and her family cannot have helped either. However, the OFSTED inspection team were there to investigate and report, not to formulate allegations and obtain a specific response to them."
"I cannot leave this aspect of the case without repeating and amplifying one comment I made earlier. It appears that no arrangements had been made to communicate the effect of the Secretary of State's decision to [Ms Shoesmith], or even the gist of the final version of the OFSTED report, before the directions were issued This means that the first she knew that she had been removed from her office was when she saw the announcement to that effect on the television. She also heard the Secretary of State say that the inspectors had said that she had displayed 'insufficient management oversight' in relation to her deputy and that she was 'not fit for office'. I have concluded that, subject to the question of whether the OFSTED report itself was flawed, the decision to make the directions the Secretary of State made was not itself made as a result of an unfair process according to law. Whether the way matters were announced was fair must be a matter for others to judge One question the Secretary of State was asked at the press conference was why [Ms Shoesmith] had not resigned 'given the damning findings of OFSTED'. He had to draw attention to the fact that she had not yet seen the report. I do not think that any fair-minded person could think that this was a satisfactory state of affairs."
"What I do not think any individual truly had, because of the limited timescale for the inspection and the media presence surrounding it, was a full, fair and considered opportunity to say something about their personal involvement in the system that operated within Haringey." (Judge's emphasis).
If this was true at the inspection stage, it certainly remained true in relation to Ms Shoesmith at all material times thereafter. The directions of the Secretary of State on 1 and 19 December were made without any further attempt to engage with Ms Shoesmith.
" standing back from the process envisaged, it cannot, in my judgment, be said to have been intrinsically unfair in its conception in relation to any individual concerned."
" a substantial factor in [Ms Shoesmith] being replaced by the Secretary of State was because, as head of the department that was assessed to be inadequate, she was held 'accountable'. To that extent, the normal conceptions of 'fairness' to the individual do not really apply."
"The OFSTED inspection did not consider personal blameworthiness for the failings found. However, they did consider the systems operated at Haringey. As part of that, and as the person responsible/accountable under the statutory scheme, OFSTED did inevitably consider her position. It was for her to ensure that the systems were in place and operating effectively. It would be no answer to say 'I delegated'. The whole point of the new scheme was to have a single point of responsibility. So this was not about, and therefore did not need to be about, her personal blameworthiness. The Judge was correct to find that accountability was at the heart of it. In [Ms Shoesmith's] case personal blameworthiness did not need to be considered (and no opportunity to address it needed to be given) in order to ensure fairness The confidence issues were of considerable importance for obvious reasons."
Thus, the Secretary of State's case is pitched very high as it must be in view of the denial of normal protections.
(2) The Sun's petition
(3) No difference
"the law is clear that if it would not have done so, [Ms Shoesmith] has lost nothing 'of substance'. Unfairness does not exist in a vacuum."
"Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision."
These words echo those of Bingham LJ in ex parte Cotton (at page 352).
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
(1) Amenability to judicial review
"There is an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation."
"We do not have a developed system of administrative law perhaps because until fairly recently we did not need it."
"An elected body is in a very different position from a private employer. Many of its servants in the lower grades are in the same position as servants of a private employer. But many in higher grades or 'offices' are given special statutory status or protection."
"The appellant's challenge to the action taken by the respondents raises a question, in my opinion, of administrative law. The respondents are a public authority, the appellant holds a public position fortified by statute. The considerations which determine whether he has been validly removed from that position go beyond the mere contract of employment, though no doubt including it. They are, in my opinion, to be tested broadly on arguments of public policy and not to be resolved on narrow verbal distinctions."
"None of these three decisions of the House of Lords was directly concerned with the scope of judicial review under RSC, Ord 53."
And (at page 164B):
"In all three cases there was a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff As Lord Wilberforce said [in Malloch, at pages 1595-1596], it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a 'higher grade' or is an 'officer'. This only makes it more likely that there will be necessary statutory restrictions upon dismissal, or other underpinning of his employment It will be this underpinning and not the seniority which injects the element of public law."
"The concept of natural justice involved in many of the cases is clearly now subsumed in that of an 'unfair dismissal'. To the extent that such cases laid down any principle of law, then of course they must be followed. As always, however, to the extent that they were really decided upon their own facts they provide no precedent for later cases.
Further, I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal. In my opinion the courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure "
"Sufficient statutory underpinning would be afforded by the dual position of a contract of employment and an office specifically provided for by statute." (Judgment, paragraph 510)
"(a) professional responsibility and accountability for the effectiveness, availability and value for money of local authority children's services;
(b) leadership both within the local authority to secure and sustain the necessary changes to culture and practice, and beyond it so that services improve outcomes ; and
(c) building and sustaining effective partnerships with and between those local and out-of-area bodies who also provide children's services "
(2) Alternative remedy
"the principle that if other means of address are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review."
" the alternative remedy should, in accordance with normal principles, be exhausted before consideration is given to any relief within the public law jurisdiction. Since, in the circumstances, that relief would probably only amount to a declaration that her dismissal was unfair on procedural grounds (if that is established), it is plainly an issue that is best considered by the Employment Tribunal which can look at the matter more broadly and with all the specialist expertise at its disposal."
"The overall impression gained of Haringey's approach was that the sooner [Ms Shoesmith] was dismissed with no compensation, the better, and that everyone could 'move on' once that had happened. However, simply because the OFSTED report was in the terms it was, and the Secretary of State acted as he did and he, others and various national newspapers called for summary dismissal was no proper justification for taking such an approach and it created an appearance of an unfair process."
"It is a settled principle of law that if a public authority purports to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully (categories which overlap), the dismissal is, as between the public authority and the office-holder, null, void and without legal effect, at any rate once a court of competent jurisdiction so declares or orders. Thus the office-holder remains in office, entitled to the remuneration attaching to such office, so long as he remains ready, willing and able to render the service required of him, until his tenure of office is lawfully brought to an end by resignation or lawful dismissal."
(3) The consequences
"We suspended [Ms Shoesmith] immediately and will follow the legal process as speedily as possible."
"The suspension will be on normal contractual pay and it will operate until there has been time to fully investigate the direction of the Secretary of State in relation to the position you hold and the allegation that the relationship of trust and confidence in you has been fundamentally breached following receipt of the [OFSTED Report]."
"(1) The panel found that the effect of the direction of the Secretary of State , which it had no reason to suppose was not valid and lawful, was to remove responsibility for all duties and functions for your post as [DCS]. The panel further found that no significant elements of that post could be exercised outside the effects of that direction.
(2) The panel found that the relation of trust and confidence in you had been fundamentally breached as a consequence of the summary judgment and the main findings of the [JAR]
(3) The panel took no account of the statement by the Chief Executive at the press conference on 1 December in reaching its decision."
"It seems to me that, for the benefit of the Court of Appeal should this aspect of the case find its way there, I need to set out the features of the case that, in the absence of an alternative route to relief and subject to argument about the precise terms of any relief granted, might have persuaded me to say that the judicial review claim would have succeeded against Haringey."
He made it clear that nothing he said was intended to or should influence any subsequent proceedings in the Employment Tribunal.
" the starting point for a responsible and considerate employer (acting as an employer) would be to be concerned that a respected and loyal employee who is the subject of a critical comment, whether by a government minister, a national newspaper or any other commentator, is treated fairly in any ensuing consideration of his or her position within the Council.
Haringey should, in my view, have striven not merely to be fair in what it did so far as [Ms Shoesmith] was concerned, but to be seen unequivocally to have been fair
I can well understand the difficulties involved. It will have been a difficult balance to strike between accepting (and being obliged to accept) the Secretary of State's decision and acting upon it immediately and yet maintaining a firm line that fairness to [Ms Shoesmith] needed to be displayed. However the law expects and demands that such a balance is to be shown.
as a crucial document in any consideration of the employment position of [Ms Shoesmith] , [the OFSTED report] demanded, in my view, rather further investigation before steps were taken pursuant to it.
there is the question of whether there was to be any 'investigation'. The allegation that was to be made was that the OFSTED report evidenced a failure to maintain the relationship of trust and confidence between her and the council One would have thought that ordinarily some more precise particulars of what it is that she did or did not do would be provided to her. It does seem to me at least to be arguable (although this would really be a matter for the Employment Tribunal) that some rather more precise particulars were required of that assertion.
[As regards councillor Reith] having said what she said about 'payout' at the press conference, or having associated herself with something like that, there will clearly be an appearance of bias because it suggests a pre-disposition towards the conclusion that the dismissal was inevitable and indeed, not merely that there should be a dismissal, but one of a summary nature without compensation. For my part, I would have had no reservations about saying that that hearing was sufficiently flawed for any decision based upon it to be set aside unless it could be shown that the decision was so inevitable that it simply did not matter
At all events, for the reasons I have given I have very considerable doubts as to the validity of the process that led to the decision on 8 December
[as regards the appeal hearing] the question from a public law perspective, if the matter fell to be dealt with by way of judicial review, is whether it was a hearing that could be seen to be fair. If so, arguably it would 'cure' the defects in the earlier hearing. There are three matters that cumulatively have persuaded me that the hearing did not reach a fair procedural threshold. They are as follows:
(i) The continued non-disclosure of the communications between Haringey and OFSTED over the evidence base for the report's findings.
(ii) The quite open statements of Dr O'Donovan, apparently on behalf of the council, that [Ms Shoesmith] had been dismissed with no compensation without referring to the proposed appeal dismissing [Ms Shoesmith] was, of course, one thing: dismissing her summarily with no compensation is another.
(iii) The approach of the Panel to the evidence given by [Ms Shoesmith] questioning the validity of parts of the OFSTED report is unusual it may indeed be correct that they had no opportunity of questioning the inspectors or others involved in writing the report, but where evidence cannot be challenged at a hearing by other evidence, and where, as here, the evidence of [Ms Shoesmith] was essentially unchallenged in any questioning of her, it is very unusual effectively to reject what a witness has said.
For my part, therefore, I would have been persuaded that this hearing was also flawed and, accordingly, could not have 'cured' the defects in the first hearing
The overall impression gained of Haringey's approach (perhaps understandable given all the external pressures) was that the sooner [Ms Shoesmith] was dismissed with no compensation, the better, and that everyone could 'move on' once that had happened. However, simply because the OFSTED report was in the terms it was, and the Secretary of State acted as he did and he, others and various national newspapers called for summary dismissal was no proper justification for taking such an approach and it created the appearance of an unfair process."
"Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognized as never having had any legal effect at all."
" it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether the second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determinedly an analysis of the law against the background of the familiar proposition that an unlawful act is void."
"I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its validity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity."
"What it all comes to is this. Subordinate legislation, executive orders and the like are presumed to be lawful. If and when, however, they are successfully challenged and found ultra vires, generally speaking it is as if they had never had any legal effect at all: their nullification is ordinarily retrospective rather than merely prospective. There may be occasions when declarations of invalidity are made prospectively only or are made for the benefit of some but not others. Similarly, there may be occasions when executive orders or acts are found to have legal consequences for some at least (sometimes called 'third actors') during the period before their invalidity is recognised by the court see, for example, Perry v Hall  QB 924. All these issues were left open by the House in Boddington. It is, however, no more necessary that they be resolved here than there."
Again, the context was different from the present case, miles away from the complex relationships of Secretary of State, local authority and DCS.
"(1) Haringey acted in reliance on the findings in the OFSTED report when it 'demanded rather further investigation before steps were taken pursuant to it'.
(2) Haringey knew, through the Chief Executive, that at the time of the initial Panel hearing which resulted in the decision to dismiss summarily Ms Shoesmith had 'variable ability to concentrate during this very difficult period'.
(3) The 'trust and confidence' case against her was insufficiently particularised.
(4) There was apparent (not actual) bias on the part of Councillor Reith.
(5) The flaws in relation to the initial panel were not cured by the internal appeal in January because that was also flawed for a number of reasons, including the fact that (as the Judge was minded to infer) there was 'the appearance of a predetermined outcome to any hearing that took place' (Judgment, paragraph 529(ii), my emphasis)."
"overall impression that the sooner [Ms Shoesmith] was dismissed with no compensation the better, and that everyone could 'move on' once that had happened."
and that there was "no proper justification for taking such an approach [which] created the impression of an unfair process". (Judgment, paragraph 531).
4. The consequences: relief
"Their Lordships feel great sympathy for the appellant in these grave misfortunes. But it would not be appropriate to make an order which had the practical effect of requiring the TSC to appoint the appellant (who may not be well enough to discharge his duties) to an office which is no doubt now held by another history teacher."
Summary and final observations
"It seems that the making of a public sacrifice to deflect press and public obloquy, which is what happened to the appellant, remains an accepted expedient of public administration in this country. (Gibb v Maidstone & Tunbridge Wells NHS Trust  EWCA Civ 678, (at paragraph 42)"
Lord Justice Stanley Burnton:
The Master of the Rolls: