England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT AND FAMILY COURT
(HER HONOUR JUDGE FINNERTY)

		Royal Courts of Justice Strand London, WC2
		4th September 2015

1. LADY JUSTICE KING: This appeal arises out of care proceedings in relation to EB, a little girl born on 24th August 2012, now 3 years of age. EB was made the subject of a care and placement order on 10th October 2014 by Her Honour Judge Finnerty sitting at the York Family Court. The mother, MB, seeks an order setting aside those orders, for fresh expert evidence to be commissioned and for the matter to be remitted for a rehearing before a different judge.
2. The mother is a litigant in person. At an oral hearing for permission to appeal, heard by Gloster LJ, the mother's essential case was that she had been the victim of unfair process, that she had not had adequate access to the papers and that she did not know what allegations she was facing until she went into the witness-box and had therefore been unable to produce evidence to contradict the case against her.
3. The mother represents herself today with the assistance of her McKenzie Friend and has filed, in addition to skeleton arguments and amended grounds of appeal prepared on her behalf by counsel, a fresh chronology and a fresh skeleton argument, all of which the court has read.

Filing of a Respondent's Statement in response to an Appellant's Notice.

4. Before moving on to the detail of the case I interpose to this extent. As is the usual practice at the hearing of such an application (namely the oral application for permission to appeal) heard before Gloster LJ; neither the local authority nor the children's guardian were present and the court did not have the benefit of any form of written response to the application for permission to appeal. Gloster LJ, in granting permission, on more than one occasion in her judgment, referred to the high hurdle faced by the mother in challenging the judge's findings in relation to threshold matters. Gloster LJ however concluded that, if what the mother was saying to her was right, then "she has just about a reasonable prospect of success on the appeal in relation to the factual findings." There was, she went on to say "a reasonable argument that the judge may not have been presented with the full evidential picture and may not have given a full opportunity to the mother to present her case properly." Blame, Gloster LJ observed, "may lay at the feet of the professionals representing her" (that is to say the mother).
5. Permission to appeal having been given, the mother as would be expected, was granted legal aid and amended grounds of appeal and skeleton argument, were filed by leading counsel on 14th June 2015. Leading counsel for the local authority, Mr Hayes QC, filed his skeleton argument in response on 6th July 2015, which skeleton was in due course supported by the children's guardian.
6. Mr Hayes' skeleton argument placed an entirely different perspective on the case as presented by the mother before Gloster LJ, correcting, as it did, a number of serious inaccuracies about the evidence in relation to the mother's state of knowledge of the allegations made against her and the circumstances in which an application for a neurological assessment of the mother had been withdrawn.
7. The skeleton argument submitted by the mother's legal representatives on the appeal recognised the uphill task they faced, but sought to persuade the court that there should be a further expert neurological evidence in respect of the mother and thereafter for there to be a retrial.
8. Had Gloster LJ had the benefit of the local authority's response it is hard to imagine that permission to appeal would have been granted to the mother. With respect to Mr Ekaney QC, who prepared the appellant's skeleton argument, nothing within that skilfully drafted document begins to satisfy any of the three criteria for undermining a judge's finding in relation to primary findings of fact as set out by Lord Neuberger in Re: B [2013] UKSC 33, [2013] 1 WLR 1911 at paragraphs 52 and 53:

"52. There is no question of this court interfering with, or indeed being asked to interfere with, the findings of primary fact made by the Judge. Bearing in mind that it is a second appeal tribunal, the Supreme Court is virtually never even asked to reconsider findings of primary fact made by the trial judge. The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judge's findings of primary fact.

53. As Lady Hale and Lord Kerr explain in para 200 and para 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first)."

9. In making these observations I am not in any way criticising either the mother, who explained matters as she saw them to Gloster LJ, or the local authority who were at the date of the application under absolutely no obligation to file anything for the oral application for permission to appeal. Each were acting entirely in accordance with practice as it then was.
10. The deficit in information available to the single Lady Justice resulted in the case going to full appeal in circumstances where one feels confident that had the judge been more fully informed permission would not have been given. Such an outcome has serious consequences on a number of levels: first and foremost, in terms of delay for any child at the heart of such litigation; there is however also a significant knock-on effect in terms of costs and of the "clogging up" of the already seriously overload Court of Appeal lists.
11. In order to address this and similar problems the Civil Procedure Rules 1998 Practice Direction 52C (Appeals to Court of Appeal) has recently been amended to provide 52 CPD 19 that:

"If the appellant seeks permission to appeal a respondent is permitted, and is encouraged, within 14 days of service of the appellant's notice or skeleton argument if later to file and serve upon the appellant and any other respondent a brief statement of any reasons why permission should be refused, in whole or in part."

The balance of the new rule sets out the prescribed length and content of such a statement.

12. Care cases decide the future of the babies and children the subject of the proceedings. Appeals, even if expedited, cause a significant delay in the implementation of those decisions. Whilst the terms of 52 CPD 19 are permissible, I would suggest that in circumstances where an appellant's notice is filed by a litigant in person at the conclusion of public law proceedings, the local authority involved should, as a matter of good practice, always file a respondent's statement for the assistance of the single Lord or Lady Justice at the oral application for permission to appeal. In that way the court, when faced with the presentation of an applicant's case in what will often be a layman's format, will be in a far better position to determine whether what they have before them is an understandably anguished parent, unable to accept a proper, although unwelcome outcome, or whether there is indeed a real prospect of succeeding in establishing that in the circumstances of this particular case the trial judge went wrong.
13. As it is, it is now approaching 12 months since the order that adoption is in the best interest of EB was made. The mother has had her hopes raised but has now, unsurprisingly on the facts of the case, had her legal aid withdrawn and once again represents herself. In the meantime the local authority and the Legal Aid Fund have incurred substantial costs in preparing the case which has a bundle comprising eight files of evidence and seven files of transcripts of the evidence, a very significant expense which had to be incurred in order to meet the case that the trial was in some way unfair.

The Appeal

14. I turn then to the background of the case in respect of which permission has been given. The mother is a university educated woman in her mid 40s who spent most of her adult life living abroad, primarily in the United States but also for a period of 2 years in Turkey. She returned to the UK in 2010 where she has lived since. Her mother and brother and sister (the third and fourth respondents in this matter) also live in the UK. The mother's account of her past history is that she run a number of successful music schools whilst living in the United States. She has been married on three occasions. Two of those marriages she describes as having been violent. Since her return to the United Kingdom the mother has had a number of relationships, one of which with SS, the father of EB. SS has a substantial criminal record and history of chronic drug and alcohol abuse.
15. The mother was diagnosed with narcolepsy and epilepsy some years ago which conditions have been controlled with medication. In addition she presents with what has been described as "a complex neuro psychiatric history" as well as having suffered from significant episodes of violence within her adult relationships.
16. From a time when EB was about 2 weeks of age the mother presented to various health professionals with a number of health concerns about EB. They are recorded as including allergies, seizures, being floppy, limp, unresponsive, needing to be resuscitated, being hypoglycaemic, having traits of autism and brain damage.
17. A referral was made to the Children's Services on one occasion after EB was admitted to hospital when the mother had claimed that EB had suffered seizures. The mother's behaviour, as she accepted at trial, was erratic, confrontational, aggressive and irrational.
18. On 12th June 2013 a strategy meeting was held and a core assessment completed. The mother agreed to a mental health assessment and support pursuant to section 17 Children Act 1989 was to be provided. The mother subsequently withdrew her consent for those section 17 services.
19. From January 2014 onwards there were increasing concerns about the mother's mental health and a number of referrals were made to children's services by various agencies. The mother reported that EB was having ischemic attacks, suffered from light sensitivity, macular degeneration, glaucoma and again hypoglycaemia. The mother at one stage, as the judge found, claimed that her symptoms would lead to EB requiring her pancreas to be removed.
20. Further strategy meetings were held in February 2014 as concerns mounted about the mother's deteriorating mental health and the consequent and inevitable impact upon EB. There were also increasing concerns about fabricated illness in relation to EB. A crisis point was reached on 5th March 2014 when the mother was reporting thousands of earwigs were coming out of the air vents in her property and crawling over the house.
21. The mother's mental health deteriorated to the extent that the police attended at her property and she was detained under section 136 of the Mental Health Act 1983. She remained in hospital as a voluntary patient until 20th March 2014.
22. An emergency protection order was accordingly made in respect of the EB on 17th March and an interim care order was made five days later. The mother instructed experienced child care solicitors and the case was allocated to the designated family judge in York, Her Honour Judge Finnerty. The case management proceeded thereafter in an exemplary manner. In the light of concerns about the behaviour of EB when she was in the presence of her mother at contact visits, the court directed a consultant psychologist to provide an assessment of the relationship and attachment between mother and child. A consultant paediatrician was also instructed to consider the question of fabricated illness in respect of EB.
23. On 7th June 2014 an application was made, on behalf of the mother for the instruction of a neurologist or neuro psychologist to prepare a report upon her. At a hearing on 24th June 2014, listed specifically to consider the mother's application, upon instructions from the mother, the application was withdrawn.
24. The keys issues to be considered by the court at trial were identified at that hearing and additional questions were drafted for the psychologist, a Ms Kath Davies, to consider. Provision was also made for the mother's solicitors to serve reports from the treating consultant neurologist, setting out the detail of the treatment the mother was being prescribed and the effect if any, of her medication upon her health and behaviour.
25. The mother subsequently dispensed with the services of her solicitor. Initially she indicated she wished to represent herself before then engaging the services Messrs Henry Hyams, another local firm of solicitors experienced in child care work.
26. Time was extended for the provision by the mother of her evidence in order to accommodate the fresh instructions to Messrs Henry Hyams.
27. The matter came on for trial on 22nd September 2014 and lasted 10 days, with judgment being given in October. The mother, and indeed the father, accepted that the statutory threshold criteria required, pursuant to section 31(2) of the Children Act 1989 was satisfied. The mother conceded:

"The first respondent mother [MB] suffered a significant deterioration in her mental health from March 2014 while caring for [EB]. This included hallucinating, exhibiting pressure of speech and paranoid ideas."

The mother further conceded, within the threshold, that her behaviour had been "erratic, confrontational, highly anxious, emotional and agitated and that such behaviour would have interfered with her ability to parent EB". She further accepted that at the time the proceedings were initiated she lacked insight into her behaviour and the impact upon her parenting capacity. Her case at trial was that she has now gained such insight.

28. Paragraph 2 of the threshold contained the allegation that the mother fabricated symptoms as a result of which EB underwent various unnecessary investigations. These included allegations made by the mother that light was affecting EB's eyes.
29. The mother accepted at trial that she was an over anxious parent, but denied fabricating symptoms and denied the detail of some of the allegations made; for example that she has suggested that EB may need her pancreas removed or she was showing autistic traits.
30. The mother's position in relation to future care of EB fluctuated during the course of the trial. Prior to the trial the mother sought the immediate rehabilitation of EB to her care. On the first morning she excluded herself as a carer and supported instead a permanent placement with her brother and sister. However, at the conclusion of their evidence she opposed placement of EB with either of her siblings, seeking instead a gradual return of EB to her care with adoption being preferable to placement with either her brother or sister.
31. Having heard lengthy evidence from the mother in the witness box, the judge found the mother to be "wholly unreliable and her evidence conflicts with the evidence of everyone else. I preferred the evidence of anyone else over her account." The judge, in a long and detailed judgment, made the findings sought by the local authority, including that the mother had invented symptoms and that she had alleged that EB was starting to lose her sight completely and that EB was going from being "happy and strong to blind, collapsing and screaming in agony".
32. The judge having analysed the raft of evidence together with the assessment of Ms Davies, concluded that there was a disorganised attachment as between mother and child. The judge having found the threshold satisfied in relation to the issues in dispute as well as those conceded by the mother, turned to consider what future placements would be in best interest of EB. The judge was clearly impressed with the maternal aunt and uncle and said in terms that she would have wished to be able to place EB with them. However, having heard them give evidence, she reluctantly concluded that whilst the love and care they could give EB may well be unimpeachable, they would be wholly unable to protect her from interference from the mother.
33. The judge conducted the so called Re BS exercise, carefully considering each alternative option for EB, looking at the totality of her welfare needs before concluding that adoption was in her best interests.

Grounds of Appeal

34. There are five grounds of appeal filed on behalf of the mother in relation to the threshold criteria which can be briefly summarised:

(1) that the process of which the court arrived at its conclusions in relation to fabricated symptoms were "unduly harsh in the context of the mother's complex neurological and psychiatric history". The mother sought to admit neuro psychological evidence in order to demonstrate her vulnerability. Whilst not formally admitting such reports as fresh evidence, the court has read two new reports filed by the mother for our consideration. They were (i) from Candy Clarkson, an educational consultant, who says the mother suffers from ADHD and secondly, from Dr Annie Hickox, a consultant psychologist, who speaks of the mother having a "concrete" and "inflexible cognitive style" and who benefits from dealing with one topic at a time. She identified what she considered to be Asperger's Syndrome traits which, she said, merited formal assessment.

35. In her oral submissions this morning the mother told the court that she has problem with the communication of the type I have briefly identified. She said that had the judge had the benefit of the report of Dr Hickox available to her, she would have recognised this vulnerability. But, she said, the judge did not have the benefit of that report and therefore lacked that insight.
36. Ms Adcock, on behalf of the children's guardian, helpfully summarised the relevance of that submission to the issues before this court and the ground of appeal I have just outlined by saying that the key question is: "was the trial rendered unfair as a consequence of the mother's difficulties such that it should now be reheard?"
37. The second area of attack is that the court's finding that there was no abnormality in EB's eyes was wrong as EB in fact required surgery for a squint. The mother alleges that this fact was known to the local authority during the hearing but it was not disclosed to the court. The presence of a squint is likely, the ground goes on, to have had significant impact on the court's conclusion in relation to the mother's expressed anxieties about EB's eyes.
38. That then left the central allegation which had led to Gloster LJ giving permission, namely that the mother was unaware of specific allegations made against her and the evidence upon which the local authority relied until she came to give evidence to the court.
39. [A further ground that the nexus between developmental delay in the child and the parenting had been tenuous was effectively abandoned by the mother this morning.]
40. In relation to the welfare analysis, the mother argues that it is not inevitable that the findings of fabricated symptoms would lead to a complete severance of the relationship between the mother and EB. Again, she submitted that the court had inadequate information on the mother's neurological and mental functioning and as to how it would affect her behaviour and her perception of others. Inadequate mention, the mother says, was made of her co-operation, during the proceedings or of observations of positive parenting prior to EB going into care.

Analysis

41. Mr Hayes, on behalf of the local authority, carefully analyses the case management orders placing the decision to withdraw the application for a neurological assessment in context. To this end he emphasised that the case management order of 24th June expressly records that the mother did not seek any further expert evidence and noted that at the issues resolution hearing on 11th August 2014, no suggestion was made that further expert evidence was required. In the event, the court now has available in the form of the reports of Dr Hickox and Ms Clarkson, the evidence on which the mother would have wished to rely and has read it de bene esse. It is therefore unnecessary further to evaluate or examine this aspect of the case.

The Eyes

42. The allegation that the local authority knew but did not disclose to the court that EB had (contrary to its own case and the evidence of the paediatrician Dr Morrell) a significant abnormality in her eyes, is a serious allegation. It goes without saying that if the local authority had misled the court in such a way and, EB had a significant eye abnormality, it is highly likely that such evidence would have had an impact on the court's conclusions in relation to the mother's expressed anxieties about EB's eyes.
43. Mr Hayes robustly and completely deals with the issue, identifying by reference to the evidence that it was known by all parties at first instance that EB had a squint, which squint was specifically mention by Dr Morrell, in his reports. Further, Mr Hayes says, the medical records disclose that the mother had herself on two occasions failed to attend at the ophthalmologists in order for treatment for the squint to be considered.
44. This unalarming and common feature seen in thousands of children is wholly different from the mother's suggestion that EB was sensitive to light, that she was losing her sight and was in significant pain. Mr Hayes further highlighted that the judge had quoted from the unchallenged evidence of the health visitor which recorded that the mother had told her that EB became "aggressive and destructive when exposed to bright light".
45. Accordingly Mr Hayes submits that the judge knew that EB had a squint, and that the issue for the court to resolve was whether EB was, as the mother had described losing her sight completely or was being aggressive when exposed to bright lights. The learned judge, Mr Hayes submits, was fully entitled to conclude that the mother's claims were fabricated.
46. I accept the analysis of Mr Hayes and it follows that there is no basis upon which the fact that it was known to all parties, including the experts, that EB had a squint could undermine the findings made by the judge in relation to the mother's fabrication of more serious problems with EB's sight. The fact that in due course EB was taken to the appointments which had been missed by the mother and surgery was recommended for correction of the squint, is irrelevant to the issue before the judge.

The mother's state of knowledge.

47. The mother alleged that she was unaware of the specific allegations made against her and the evidence from which the local authority has relied until she gave evidence in court. Mr Hayes again sets out, by reference to the documents and in particular the threshold schedules and responses filed on behalf of the mother, the mother's state of knowledge in relation to each of the allegations from time to time. The allegations are clearly identified from the earliest stage and were made the subject of detailed inquiry through the medium of the joint instruction of two experts Dr Morrell, the consultant paediatrician and Ms Kath Davies, the consultant clinical psychologist.
48. The final threshold schedule was served on 23rd June 2014 and set out a list of the alleged fabricated symptoms the mother had described in relation to EB. The mother subsequently changed her legal team and was given an extension of time to respond to that schedule. At no stage, with the benefit of her new team, was it suggested on her behalf that the mother was unaware of the case being put against her nor were further particulars sought.
49. The instruction of Dr Morrell was a joint instruction. The report contains a detailed summary of the medical records. It is clear from the mother's statement that she had read and understood the report, declaring as she did, that she was "horrified" and stating that she had "gone completely over the top in relation to what I honesty thought at the time were the medical problems of my daughter."
50. From my own reading of the papers, I note that during the course of her assessment with Ms Davies, there are numerous references to the mother wishing to draw Ms Davies' attention to various documents in the case.
51. The mother filed a threshold response on 7th August 2014, which documents allowed the judge to distil the threshold allegations into those which were conceded, those which remained in issue and, those which required judicial evaluation. This exercise enabled the judge to identify the four key threshold issues she had to determine.
52. The court has now had the benefit of reading an affidavit filed by the mother's counsel Mr Duncan Maxwell-Stewart, sworn on 1st June 2015 but most regrettably, not disclosed to the local authority until after Mr Hayes had filed his skeleton argument. Mr Maxwell-Stewart sets out the dates of his various conferences with the mother. The mother accepts those conferences took place but says they were insufficiently long. Mr Maxwell-Stewart details how the threshold document was discussed in those conferences and led to the drafting of the response. He also highlights the mother's considerable, and commendable, familiarity with the papers, saying at paragraph 15:

"... it is my recollection ... that the mother had received bundles before the trial, had read them and at many points through the hearing would bring specific documents to my attention for us to consider. Each time she did so we considered those documents with her to advise whether they were actually relevant to her case."

At paragraph 24:

"I had the medical notes and had read them. At different points during the hearing, and in conference with the mother, I took instruction on the relevant medical notes and considered them fully with her. On a number of occasions during the hearing, the mother would identify specific documents for medical records to bring to my attention, which were considered jointly each time she raised one."

53. Those observations tie in with those of Ms Davies referred to above in relation to the mother drawing specific documents to the attention of those with whom she was discussing the case.
54. In light of the affidavit of Mr Maxwell-Stewart, the mother was asked by McFarlane LJ this morning if she pursued the ground of appeal that she did not know the case she was to answer. The mother whilst not directly answering that question, now accepts that the allegations "were there", but she said that her ability to "defend herself" was "not there". She should, she said, have had further documents with which to defend herself. Whilst not tying it in with earlier submissions, I apprehend that those additional documents may well have been some Scarborough Hospital records which the mother says were not available to the court at trial.
55. Mr Hayes confirmed that the court bundles were available to the mother as were copies of the medical records. In his skeleton argument he refers not only examples of the judge giving sympathetic opportunity to the mother to orientate herself within the papers during the course of her evidence, but also of the mother herself introducing evidence that she herself had read within the medical records.
56. There is in my judgment no basis whatsoever to say that the findings of the judge are undermined or that the mother was denied a fair trial by virtue of a lack of familiarity, either with the allegations or of the evidence upon which they were based. The mother had well-known specialist counsel and solicitors who were subsequently replaced with a second set of specialist counsel and solicitors when she lost confidence in her original legal team. The case management orders show meticulous care in identifying the allegations and issues but, in any event, the mother's own behaviour reveals a familiarity with the papers including the medical records, rarely seen in parents.
57. That leaves the question posed by Ms Adcock, namely in the light of Dr Hickox's report was the trial rendered unfair so that a rehearing is required?
58. All the transcripts of the evidence of the mother are available. They reveal that the mother was in the box for some considerable period of time, but the transcripts show her being given and offered breaks by the judge and, of the judge clarifying matters both for herself and for the benefit of her mother. It is clear from a perusal of the transcript that the mother understood the nature of the questions and the issues she had to deal with. She was well able to give answers. It may be that had the judge known that the mother was a "concrete thinker" she might have occassionally intervened to require some of the longer questions posed by Counsel to have been broken down. However, in my judgment, the mother showed herself well able to "hold her own" and the judge did all that was appropriate to allow her to do herself justice in the witness-box.
59. It should be borne in mind that this was a fact-finding case with serious allegations made against the mother of fabricating medical symptoms in relation to an infant. In such a case, a number of the questions asked in cross-examination will inevitably be, and were, difficult and testing for the witness to answer. Having read the transcripts I am satisfied that at no stage did the cross-examination cross the line and become confrontational or aggressive or render the mother, with her difficulties as outlined in the reports, unable to deal with the case against her.
60. In my judgment the findings of fact are unassailable and this is not one of the rare cases identified by Lord Neurberger in Re: B where, as a consequence of one of the three factors identified by him, primary findings of fact must needs be undermined by this court. I am further satisfied that the mother was in no way hampered to any significant extent by her communication difficulties or that the trial was in any way unfair.
61. The judge having made her findings of fact turned to consider what outcome would best serve EB's interest. The mother rightly says in her grounds of appeal that it is not inevitable that the findings of fabricated symptoms should or would lead to a complete severance of her relationship with her child. She further complained that insufficient emphasis had been placed on the various recordings of positive parenting found in the papers in relation to the period of time before EB was taken into care.
62. The judge's task was to look at the totality of the findings and circumstances often referred to in the authorities as "the broad canvas". Any indications of positive parenting must form part such a canvas but so too must the evidence in the case which shows, beyond peradventure, that the events of March 2014 could not to be viewed in isolation but were the culmination of a concerning and deteriorating picture observed over many months prior to EB's reception into care. It should be remembered also that the mother herself had bravely made significant concessions about her own behaviour and of its impact on EB. Whilst, on occasion, appropriate behaviour and interaction was seen between the mother and child, that same mother (it was found by the judge) was fabricating symptoms of illness in the same child.
63. In my judgment, the judge had all the information necessary to enable her to conduct the welfare analysis. The judge reached a decision which whilst understandably deeply distressing to the mother, is not, in my judgment, susceptible to challenge.
64. In all the circumstances therefore, I would dismiss this appeal.
65. LORD JUSTICE McFARLANE: I agree with all that my Lady has said in her careful analysis of the judge's judgment. I agree that the fact-finding conclusion of the judge was unassailable on appeal and, sadly for the mother, the welfare determination was inevitable in the light of the evidence before the judge.
66. I would only add in this sort judgment my own endorsement of what my Lady has said about the new facility provided by paragraph 19 of Practice Direction 52C. It should be a matter of good practice in every case where a local authority is aware of an applicant making application for permission to appeal to this court to file albeit a short document setting out their response to the points made. Such a practice can only assist in the efficient and early determination of which cases do merit the granting of permission and those which unfortunately for the applicant do not.
67. LORD JUSTICE PATTEN: I agree with both judgments.