England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL
CIVIL DIVISION

		Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		27 June 2013

1. LORD JUSTICE RICHARDS: This appeal concerns a narrow issue arising under the Public Passenger Vehicles Act 1981 ("the Act"). The central question is whether a school bus was being "used ... for carrying passengers" within section 12(1) of the Act at a time when the school children had got on to the bus and the register had been taken but, in circumstances to which I will come, the bus had not yet moved off from its parking place.
2. The Act defines a public service vehicle ("a PSV") in section 1:

"(1)Subject to the provisions of this section, in this Act 'public service vehicle' means a motor vehicle (other than a tramcar) which—

(a) being a vehicle adapted to carry more than eight passengers, is used for carrying passengers for hire or reward..."

Section 12(1) sets out the requirement for a PSV operator's licence in respect of the use of such a vehicle:

"A public service vehicle shall not be used on a road for carrying passengers for hire or reward except under a PSV operator's licence granted in accordance with the following provisions of this Part of this Act."

Section 18(1) imposes a duty to display an operator's disc on the vehicle:

"Where a vehicle is being used in circumstances such that a PSV operator's licence is required, there shall be fixed and exhibited on the vehicle in the prescribed manner an operator's disc issued under this section showing particulars of the operator of the vehicle and of the PSV operator's licence under which the vehicle is being used."

Thus an operator's disc must be displayed when a PSV is used on a road for carrying passengers for hire or reward. Failure to display a disc as required is a criminal offence under section 18(4).

3. The appellant, Mr Grey, owns a passenger transport business known as City Tax. In that capacity he has a PSV operator's licence which authorises the use of a maximum of four PSVs; and four operator's discs are issued with the licence. The business in fact has eight PSVs, including buses of various sizes, but on the evidence given by the appellant it operates no more than four of them at any one time, transferring the operator's discs between vehicles as necessary. There is no issue between the parties as to the lawfulness of that method of operation.
4. The appellant's evidence is that the business has a strict policy whereby a driver taking a vehicle that needs a disc will sign out the disc before the vehicle leaves the depot and will sign in the disc upon his or her return to the depot. But the system did not work as it should have done on the occasion that gives rise to the present case. A bus was due to be taken out to pick up children at Pontybrenin School on the afternoon of 29 May 2012, on what was referred to as route 343, but the disc intended for use on that bus was not available. It had been used on a different vehicle in the course of the morning, and the driver of that vehicle, Mr Hartnoll, had not signed it back in. He had gone off on another trip with the disc in his pocket. He was contacted by radio from the depot and confirmed the mistake. So a technician, Mr McMurray, was sent off to meet Mr Hartnoll, collect the disc and take it to the route 343 bus at its school pick-up point.
5. The driver of the route 343 bus, Mr Norwood, described in his witness statement what happened from the time when it was noticed at the depot that the disc for the bus was missing:

"I was told by Mr John Grey that under no circumstances was I to carry passengers in the vehicle without having the operator's disc in my possession. We could not be late to collect the children, so Mr Grey instructed me to travel with my escort to the school and await the arrival of Paul McMurray, who would deliver the disc to me. At the school a driver of another minibus belonging to AC Jenkins guided me into my usual parking pace, as he did every day. Once I was parked a Council inspector approached my vehicle. He began carrying out checks on the vehicle, escort and driver. Before the children boarded the bus I informed him that I was awaiting the arrival of operator's disc number 4, and that it would be brought to me soon by Paul McMurray. During the five minutes or so that we were waiting for Mr McMurray to arrive, the children were ushered on to the bus and during this time the Council Inspector monitored the children boarding the vehicle and took a register of each child that boarded. Within a short space of time Paul McMurray arrived with the disc. I showed the disc to the inspector and he verbally confirmed that it was disc number 4. I placed the disc on the windscreen and then started the engine and proceeded out of the school as normal."

6. To explain the consequences of those events it is necessary to refer next to the contract between the appellant and the City and County of Swansea pursuant to which the school bus service was provided. The contract was expressed to run from September 2011 to July 2015, with an option to extend for a further period of 12 months. It included provision for earlier termination by the Council. Clause 20.1 provided for termination on one month's written notice. Clause 20.2 provided:

"Notwithstanding the provisions of clause 20.1 the Council may be entitled to terminate this contract (in whole or in part) forthwith by written notice having immediate effect in the following circumstances:

20.2.1 if any of the circumstances set out in Schedule 1(b) exist."

Paragraph (b) of Schedule 1 included at subparagraph (v):

"Use of a PSV without an operator's licence disc or with an out of date PSV operator's licence disc."

7. By letter dated 1 June 2012 the Council relied on that provision as a ground for terminating the contract with the appellant. The letter stated:

"I must advise you that your company's actions in supplying a minibus without an operator's licence disc on 29 May 2012 leave me with no alternative but to give you notice of termination of this contract after operation on Friday, 29 June 2012 and the Council will arrange an alternative contractor to commence operation on this contract after that date."

8. On its face that appears to have been an extremely harsh reaction to the circumstances I have described, but we know nothing about the background and we are concerned only with the legal position, not with the wider merits of the Council's approach.
9. The appellant brought proceedings in the Swansea County Court seeking a declaration that the Council had not been entitled to terminate the contract, and claiming damages for breach of contract. The claim was heard with commendable rapidity by Mr Recorder Thom QC, on 5 July 2012. He dismissed the claim. Mr Grey now appeals against that decision. He no longer seeks a declaration, but he pursues the claim for damages.
10. The first and main issue is whether the events on 29 May 2012 involved a breach of section 18 of the Act. It is not suggested that the bus required the display of an operator's disc on its journey to the school. The focus is on the time when it was parked at the school and the children had got on board the bus but the bus was still stationary awaiting the arrival of the disc.
11. It is common ground that at that time the bus was being used on a road. There was evidence, late but uncontradicted, that the place where it was parked was an adopted highway falling within the definition of "road" in section 81(1) of the Act.
12. But was it being used at that time, as the Recorder held, for carrying passengers for hire or reward? If it was, the combined effect of section 12(1) and section 18(1) was that an operator's disc was required to be fixed and exhibited on the vehicle, but there was no such disc fixed and exhibited because the disc had not yet arrived.
13. For the purposes of further analysis the words "for hire or reward" can be left on one side, since it is plain that if the bus was being used for carrying passengers this was being done pursuant to the contract between the appellant and the council, and was therefore being done for hire or reward. One can therefore concentrate simply on whether the bus was being used for carrying passengers.
14. The argument advanced by Mrs Catherine Collins, for the appellant, is that the bus was not being used at the time for carrying passengers. She submits that the natural meaning of "carrying" implies that there is movement, that is taking from one place to another. She points to the evidence that once the children were on board the driver was not permitted by the owner to move the bus, did not intend to move it and did not in fact move it until the disc was in his possession and duly displayed. She argues that the mere presence of the children on board, prior to the bus moving, did not amount to use of the bus for carrying passengers. She says that the context is critical. It is necessary to consider why the children were on board and when the bus was going to move, and in that connection she refers to the driver's unchallenged evidence that the bus was not going to move until the disc arrived.
15. She relies further on a point made by the Recorder in his judgment that sections 12 and 18 refer to use "for" carrying passengers and not use "in connection with" or "for the purposes of" carrying passengers, and that this means that it does not extend to acts preparatory to the carrying of passengers. She submits in effect that the Recorder should have applied that reasoning so as to reach the conclusion that what happened here was merely preparatory to the carrying of passengers and did not therefore fall within the statutory language. She further submits that since the section creates a criminal offence, any ambiguity in it should be resolved in favour of the owner (the appellant).
16. Mr Graham Walters, for the Council, in his written skeleton argument emphasises that the question under the statute is not simply whether the bus was carrying passengers at the relevant time, but whether at that time it was being used for carrying passengers. He points to the fact that a PSV is defined in section 1(1)(a) as a motor vehicle which is used for carrying passengers for hire or reward, and that sections 12(1) and 18(1) both refer to the circumstances of use of the vehicle. He takes issue with the contention that carrying requires movement, but submits that, in any event, the use of the bus for carrying had begun when the passengers got on board and the register was taken. From the time of getting on board the vehicle a person is a passenger on that vehicle and the vehicle is being used for carrying that passenger. He submits that it would be an unduly restrictive construction and would give rise to problems for enforcement if there had to be actual movement before the statutory provisions were engaged.
17. The choice between those rival contentions is not greatly assisted by the decided cases, all of which relate to different contexts. GH Renton & Co Ltd v Palmyra Trading Corporation of Panama [1957] AC 149 contains some observations on the meaning of "carry" in Article III, rule 2 of the Hague Rules, which provides that a carrier shall "properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried". One argument of counsel in the Renton case was that goods were not carried if they were loaded on a vessel and then discharged at the port of loading. In rejecting that argument one of the reasons given by Lord Moreton (at page 171) was:

"I incline to the view that a ship does 'carry' goods within the meaning of Article III rule 2, from the moment when they are loaded on board."

He derived support for that view from the definition of "carriage of goods" in Article I(e), namely that "'carriage of goods' covers the period from the time when the goods are loaded on to the time when they are discharged from the ship." Similar views were expressed by others of their Lordships, again referring to the definition of "carriage" in Article I(e). So the views expressed were based heavily on the particular legislative context and provide very limited existence indeed for the question we have to decide.

18. Roberts v Morris [1965] Crim LR 46 concerned a criminal charge of using a goods vehicle for the carriage of goods for hire or reward without having the necessary licence. In the short summary report the court is recorded as having expressed, obiter, grave doubts whether a lorry returning from a place where it had carried goods for hire or reward, or going to a place where it would carry goods for hire or reward, could be said at such times to be used on the road for carriage of goods for hire or reward. A licence was only required when a vehicle was being used for the carriage of goods for hire or reward, not when it was being used at other times. That might have some bearing on the position in this case at the time when the bus was travelling from the depot to the school in order to pick up the passengers, but it tells one nothing about the position at the school when the passengers had got on board.
19. In Axa Insurance UK Plc and Norwich Union Insurance Limited [2008] Lloyds Rep IR 122, the question was which of two insurers was liable to provide an indemnity in respect of an accident in which a Mr Keeble was thrown from the elevated platform of a stationary lorry on which he was standing to take down street decorations. Section 145(4A) of the Road Traffic Act 1988 applied "in the case of a person (a) carried in or upon a vehicle ..." Andrew Smith J said this about it at paragraphs 12 and 14 of his judgment:

"The key question is whether at the time of the accident Mr Keeble was being 'carried in or upon a vehicle' within the meaning of the subsection. The word 'carried' is not defined. Subject to other considerations to which I shall come shortly, the word is to be given its ordinary and natural meaning in the context in the subsection. To my mind, its ordinary and natural meaning connotes that the person is being transported or moved from one place to another. That is not to say that a person necessarily and immediately ceases to be 'carried' once his vehicle ceases (temporarily or permanently) to be in motion or that he cannot be said to be being 'carried' when he has entered a vehicle and is waiting for it to start. That is because the question whether a person is being carried is not determined by looking at the position at a single point of time but taking a broader view of why he is 'in or upon a vehicle'.

...

Mr Dermod O'Brien QC, who represents Axa, submits that the verb 'carry' does not necessarily connote transportation or movement. He exemplifies this by observing that the words, 'the handbag was being carried by a lady' might in some circumstances connote that the lady was going somewhere or might in others connote that the lady was simply holding the bag. I agree that in some contexts 'carry' can mean simply hold or bear without connoting movement. Nevertheless, I think that the primary and more usual usage of the word connotes movement. Indeed, on Mr O'Brien's interpretation, the word 'carried' has no real meaning or significance in the subsection. More importantly, here the context is carriage in or upon a vehicle, and this reinforces that 'carried'" as used in subsection 145(4A) bears (or 'carries') the implication of movement."

20. Whilst Mrs Collins places emphasis on what the Judge in that case said about "carried" having the implication of movement, it is to be noted that the Judge equally left over the possibility that a person could be said to be carried when he has entered the vehicle and is waiting for it to start. But in any event the Judge made very clear that the findings that he was making were related very much to the specific context. The case, as it seems to me, does not give unequivocal assistance to either side.
21. For similar reasons I do not think that the dictionary definitions to which Mrs Collins drew our attention in her written submissions provide any decisive answer to the question before us. They include the connotations of transport and movement referred to by the Judge in the Axa case, but also meanings that do not connote transportation or movement as, for example, referred to by counsel in the Axa case.
22. We have had our attention drawn this morning to a further line of authorities relating to section 12 of the Theft Act 1968. Section 12(1) provides:

"(1)Subject to subsections (5) and (6) below, a person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another's use or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it."

23. The first in the line of three cases to which we were taken concerns the taking of a conveyance, not the concept of being carried in it. It is nonetheless important as providing a framework for what followed. It is R v Bogacki [1973] 1 QB 832. In that case the defendants had boarded a bus in a garage late at night. One of them had attempted to start the engine but the bus did not move and they left the garage. They were charged with attempting to take a motor vehicle without authority. One of the issues at trial, and the matter relevant on appeal, was the judge's direction to the jury as to the circumstances in which the complete offence of taking would be committed.
24. The court at page 837 rejected an argument by counsel that "take" in section 12(1) was the equivalent of "use". What was said was this (at page 837C):

"The word 'take' is an ordinary simple English word and it is undesirable that where Parliament has used an ordinary simple English word elaborate glosses should be put upon it. What is sought to be said is that 'take' is the equivalent of 'use' and that mere unauthorised user of itself constitutes an offence against section 12. It is to be observed that if one treats 'takes' as a synonym for 'uses' the subsection has to be read in this way: 'if ... he uses any conveyance for his own or another's use ...'. That involves the second employment of the word 'use' being tautologous. This court can see no justification where Parliament has used the phrase 'if...he takes any conveyance for his own or another's use' for construing this language as meaning if he 'uses any conveyance for his own or another's use', thus giving no proper effect to the words 'for his own or another's use'.

For those reasons the court accepts Mr Lowry's submission that there is still built in, if I may use the phrase to the word 'takes' in the subsection the concept of movement and that before a man can be convicted of the completed offence under section 12(1) it must be shown that he took the vehicle, that is to say, that there was an unauthorised taking possession or control of the vehicle by him adverse to the rights of the true owner or person otherwise entitled to such possession or control, coupled with some movement, however small ... of that vehicle following such unauthorised taking."

25. That authority was considered in the case of R v Miller [1976] Crim LR, in which the appellant had been convicted of allowing himself to be carried in a motor launch in circumstances where he had boarded the launch in anticipation of going for a journey but the launch was not moved while he was on it. The Court of Appeal held that the concept of being carried in this context implied some movement. It said that if Parliament had intended that mere presence in or on a conveyance was sufficient, this could have been done by leaving out the word "carried".
26. In the third of the cases to which we were referred, R v Diggin [1981] 72 Cr App R 204, the court followed Miller in holding that "carried" in this context implies some movement. I think it unnecessary to deal with the further details of the court's reasoning in that case.
27. As Davis LJ observed in the course of counsel's argument, in the context of section 12, where "take" implies or connotes some degree of movement as was held in Bogacki, and where "drives" must equally connote some degree of movement, it is not in the least surprising that "carried" has been held equally to connote or involve some degree of movement. I note too the contrast that was drawn in Bogacki between "take" on the one hand and "use" on the other hand, and the fact that the conclusion reached in that case was based on the express rejection of the argument that the relevant concept was one of use. In the present case, by way of obvious contrast, we are concerned with a statutory expression relating to the use of a vehicle for carrying passengers.
28. In the present context I am satisfied that the use of a vehicle for carrying passengers is not limited to the time or times when the vehicle is in motion. In my judgment a vehicle is being used for carrying passengers throughout the period when it has passengers on board for the purpose of being transported from one place to another. That encompasses the time when the passengers have boarded the vehicle but it has not yet moved off, and the time when it has arrived at its destination but the passengers have not yet got off. That seems to me to give the expression a perfectly natural meaning, and it is a meaning consistent with, though not compelled by, the various authorities to which I have referred. I do not think that the position is altered by the fact that the driver had been instructed not to move, and did not intend to move, until the arrival of the requisite licence disc.
29. Another way of getting at the same point is to consider whether the children were passengers at the time when they boarded the bus or only when the bus moved off. I think it obvious that they were passengers from the very start, and Mrs Collins does not seek to contend otherwise. To my mind it would be very strange if the bus had passengers on board throughout but was not being used for carrying them otherwise than when it was in motion or at least until it had first moved off, even if the reason why it had not moved off sooner was an intention to wait for the arrival of the licence disc.
30. The view I take on this issue gives due effect to the policy of the Act, which is clearly to provide a high degree of control over the use of PSVs for the carrying of passengers for hire or reward. The specific requirement as to display of the disc must have the purpose of enabling or assisting all concerned to be readily satisfied that the licensing requirements are met, or at least that there is in place a proper licence. That applies both to those involved in the enforcement of the statutory provisions and to ordinary passengers who wish to board the bus, to the extent that they are interested in checking that the bus meets the relevant statutory requirements. I take Mr Walters' point that enforcement would be made more difficult if the requirements as to operator's licence and display of disc were engaged only when the vehicle was in motion.
31. At the same time it must be acknowledged that the breach of the statutory requirements in the circumstances of this case was of a very technical nature. That no doubt explains why there has been, so far as I am aware, no suggestion whatsoever of a criminal prosecution for the breach - an entirely understandable exercise of prosecutorial discretion. None of that, however, assists the appellant in relation to the question whether the Council was entitled to proceed on the basis that there had been a breach of the statutory duty to display a disc. For the reasons I have given I take the view that the Council was entitled to proceed on that basis.
32. The alternative ground advanced by Mrs Collins is that even if what happened amounted to a breach of section 18 of the Act it did not entitle the Council to terminate the contract. By paragraph (b)(v) of Schedule 1 to the contract the Council was entitled to terminate for "use of a PSV without an operator's licence disc." It is submitted that this did not require the disc to be displayed on the vehicle and that the appellant was using the vehicle with the disc within the meaning of the contractual provision since a disc had been allocated for the vehicle, even though it was not available for display on the vehicle at the material time. The argument therefore gives a different effect to the contractual provision from the effect of section 18 of the Act, and in so far as there is any ambiguity in the contractual provisions Miss Collins submits that it should be read in the appellant's favour pursuant to the contra proferentem rule, since the contract was drafted by the Council.
33. The Recorder rejected that argument in short order. He pointed out that the only obligation in relation to a licence disc is the display obligation contained in section 18, and he held that section 18 was clearly engaged by the provision in paragraph (b)(v) of Schedule 1, so that a breach of section 18 gave rise to a power to terminate pursuant to that provision. In so holding, the Recorder said that he must read the contract in accordance with the guidance contained in Mannai Investments Co Ltd v Eagle Star Life Insurance Co Ltd [1997] AC 749 and Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, that is he had to decide what was the meaning of the provision to a reasonable reader or recipient, as he put it. He was in no doubt that the reasonable recipient would consider that section 18 was engaged.
34. In my judgment the Recorder was plainly correct to reach that conclusion. There are other provisions of the contract referring very obviously to the requirements of the Act: for example, clause 11.18 provides that vehicles with over eight passenger seats must be licensed as PSVs; and paragraph (b)(i) of Schedule 1 refers to "failure to hold the appropriate PSV operator's licence", which plainly means failure to hold the licence required by the Act.
35. In the context of the contract as a whole, the reference in paragraph (b)(v) to use of a PSV without an operator's licence disc can only reasonably be understood as a reference to the requirement in section 18 of the Act to display a disc when a PSV is being used in circumstances such that a PSV operator's licence is required. Use without a disc clearly means use without displaying a disc as required by the statute. I do not accept that there is any ambiguity which might fall to be resolved in the appellant's favour.
36. Accordingly I would dismiss this appeal.
37. LORD JUSTICE DAVIS: Mrs Collins has argued the matter very well indeed on behalf of the appellant, but I too would dismiss this appeal for the reasons given by Richards LJ, with whose judgment I entirely agree. Given the background facts this may indeed, on one view, seem to be a harsh outcome for the appellant, but, as I see it, that is a consequence of the application of the provisions of the Public Passenger Vehicles Act 1981 on a true interpretation and of the terms of this particular contract, which the parties chose to make.
38. LORD JUSTICE LLOYD-JONES: I also agree.
39. LORD JUSTICE RICHARDS: Is there any further application?
40. MR WALTERS: I make an application for costs and deal with it on a summary basis. The appellant's statement of costs can be counted in.
41. LORD JUSTICE RICHARDS: I do not think we received it in advance. We should have done.
42. MR WALTERS: You should have done. I do apologise. It is a clear failure.
43. LORD JUSTICE RICHARDS: Has Mrs Collins?
44. MRS COLLINS: I received it this morning.
45. MR WALTERS: I think we sent an earlier draft through to the same place - it was only this morning as to the summary.
46. LORD JUSTICE RICHARDS: Thank you very much.
47. MR WALTERS: It should explain the source of constant concern of an order of the original hearing. There was also an order in favour of the Council on the injunction application that was brought: an interim application to stay in these proceedings. So this is only concerned with the appeal of that. The form of the statement of costs is on the statutory form, but it has not on this, because of the way in which time is recorded, been possible to break down --
48. LORD JUSTICE RICHARDS: The total is £4,562.70, is that right?
49. MR WALTERS: Yes, that is right.
50. LORD JUSTICE RICHARDS: Which is a sub-total I see.
51. MR WALTERS: There are others.
52. LORD JUSTICE RICHARDS: Yes, counsel's fees.
53. MR WALTERS: Counsel's fees, giving the grand total of £10,357.26 including VAT. Clearly if there are queries in the way in which the attendances have not been broken down, that is the way in which time recorded is done by those who instruct me, which allows access to the time spent. It does not independently record whether there was an attendance by counsel on the other side, or the --
54. LORD JUSTICE RICHARDS: I see.
55. MR WALTERS: That explains that.
56. LORD JUSTICE RICHARDS: I see.
57. MR WALTERS: That information could be extracted (inaudible) do so at the same time.
58. LORD JUSTICE RICHARDS: Thank you very much. Mrs Collins, what do you say, first of all, about the principle?
59. MRS COLLINS: I cannot oppose the principle.
60. LORD JUSTICE RICHARDS: The figures?
61. MRS COLLINS: I do oppose some of the figures. If one looks at the letters out of 2.3 hours and compares that with letters out by the appellant one has a total of 4 hours, I think.
62. LORD JUSTICE RICHARDS: We do not have your summary statement to compare it with. If you want us to look at it we will.
63. MRS COLLINS: It was faxed in yesterday. The appellant has a total of seven letters out at a gross fee of £126, or thereabouts. Again one would consider whether the respondent would have a greater response of letters out. I would suggest that that should be halved to 1.25 hours.
64. The main criticism, however, in terms of the fee arises in the schedule of work done on documents: six hours spent on reviewing the appeal bundle, witness statement and pleadings. This is a case where counsel have been instructed from the start to draft the response and advice had been undertaken, according to the document that I have seen. There has been a further conference. One wonders therefore, in those circumstances, when it was the appellant's duty to collate the bundle and an index was provided, how six hours has been spent in undertaking that activity. In terms of reviewing, I would submit that one hour would be appropriate.
65. The other issue then comes with, I am afraid, my learned friend's brief fee for the hearing. Of course the respondent can agree whatever brief fee they like with their counsel, but it comes to what is reasonable and proportionate in the circumstances. We were listed for half a day in Cardiff. The counsel has already engaged six hours worth on advice, two hours in conference. The preparation for the appeal in the circumstances has not, I would submit, required considerable extra preparation. Everything had been done prior to this time and half a day - we say £3,000 if one compares.
66. LORD JUSTICE RICHARDS: In fairness to Mr Walters he did, as I understand it, identify the criminal cases which were material for our consideration.
67. MRS COLLINS: I accept that. If one compares it with my brief of £1,500 it is not that dissimilar in one sense. I would submit that it could, however, be cut down by a third if one is looking at what is reasonable on a standard basis to be paid by Mr Grey, the appellant. Those are the submissions. In terms of quantum principle I cannot oppose.
68. LORD JUSTICE RICHARDS: Mr Walters, what do you say?
69. MRS COLLINS: As far as letters are concerned, there were 28 letters sent by the defendant. There were three on the front of the sheet and then four and then 21 being attendance on others. So it is three separate places: the party, opponents and others. There were 28 letters at a total cost of £494, although it is on a time basis 32.3 hours for a cost of £462 (?).
70. So far as attendance on documents is concerned, firstly I do say it is an actual timed record. There was the necessity to consider the initial bundle on receipt of notice of the appeal, and there was then a revised bundle and indeed agreement on what should be in the bundle.
71. LORD JUSTICE DAVIS: Six hours for this, which is the appellant's responsibility to prepare?
72. MR WALTERS: It is. Those are certainly my instructions. I think one understands the process: there was the receipt of the initial bundle, considering that, then referring back to the trial bundle and looking at certain additional matters with a view to reviewing what should be in the final or revised bundle. That is all I can say on that.
73. I will say regarding the brief fee only this: I was not counsel in the original trial. I did have to prepare the matter afresh and in terms of how it is spent it is in a sense the case that looking for something that is not there can take quite a time and take somewhat longer than when there is an identified matter(?). I am in the court's hands.
74. LORD JUSTICE RICHARDS: Thank you very much. We will retire.

Ruling

75. LORD JUSTICE RICHARDS: We have considered the respondent's application for costs. The issue of principle is not in dispute. On the argument as to quantum, we accept Mrs Collins' submission that the amount of work claimed in respect of work done on the bundle is excessive, especially having regard to the fact that the bundle is the appellant's responsibility. We do not accept her submission that Mr Walters' brief fee was too high in the circumstances of this case. But we will make an order that the appellant pay the respondent's costs summarily assessed in the total sum of £9,250 in order to reflect the point we have made.
76. MR WALTERS: That is inclusive of VAT?
77. LORD JUSTICE RICHARDS: Inclusive of VAT.
78. MR WALTERS: There is a request for time for payment of these costs and the two previous costs orders. I have taken instructions and those instructing me say that they agree to accept payment of all costs at the rate of £2,000 per month.
79. LORD JUSTICE RICHARDS: Is that common ground?
80. MRS COLLINS: That is the offer: first payment in 21 days.
81. LORD JUSTICE RICHARDS: That should be recorded in the order. Payment of costs of the appeal at the rate of £2,000 a month.
82. MRS COLLINS: Yes.
83. LORD JUSTICE RICHARDS: The first payment within 21 days of today. Can counsel please draw up an agreed order and submit it to the associate? Thank you very much, indeed.