England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		Friday, 7th September 2001

Friday, 7th September 2001

J U D G M E N T
1. MR JUSTICE MAURICE KAY: I begin by saying that in any publication or report of this judgment, the claimant must be referred to as Mrs S and her son as C, and that must appear in the order that follows the judgment.
2. C is 27 years old. When he was a young child his father died. The claimant is C's mother. She has devoted a substantial part of her life to looking after C and bringing him up. Unfortunately, C has a long history of learning disability, personality disorder and emotional problems. These gave rise to behavioural problems.
3. As time went by, there was evidence that the problems were most severe when C was living at home with his mother and that there was discernible improvement when he was accommodated elsewhere, as an inpatient or on some other basis. Throughout, C and Mrs S have lived in Plymouth and for many years there has been involvement on the part of Social Services and other agencies. Mrs S has never deviated from the view that C's best interests would be served by his living at home with her, with support from Social Services. It seems that Social Services sought to give effect to this view for some years and provided support, day care, respite, and programmes made available through the Challenging Behaviour Service. By 1992 and 1993, the difficulties were increasing. In September 1996, Dr James, a consultant psychiatrist, reported:

"C has made excellent progress in many areas of his life except at home with his mother, where a variety of obsessional behaviours persist. It is unlikely that these behaviours will fade spontaneously."

4. The letter contains a graphic description of how C was behaving at home soon after returning from a period in a residential school. At that time Dr James still favoured C living with his mother, albeit with intensive in-house support.
5. In 1997 and into 1998, there was evidence of further deterioration. The contemporaneous documentation refers to C behaving as an elective mute, causing damage in the house, absconding, sexually inappropriate behaviour, and exposing himself and others to danger through lack of road sense. On 19th February 1998 there was a case conference which Mrs S attended. A police representative expressed concern that "something needed to be done as soon as possible". Representatives from the Challenging Behaviour Service were concerned about Mrs S's physical ability to cope. Apparently, for the first time consideration was given to the possibility of guardianship under section 7 of the Mental Health Act 1983, but at that time a report from Dr Morris, another consultant psychiatrist, was awaited and so further consideration was postponed.
6. When Dr Morris reported, he said:

"The conclusions from this differential behaviour in other places and at home would probably be that C would be better placed in a small caring environment separate from his mother's house. Due to the complex relationship between mother and son, this may present certain difficulties. Social contact between C and his mother will of course continue as part of a package of care.

As to Guardianship, it is my opinion that C would meet all the requirements of the Mental Health Act, section 7..."

7. Those requirements are set out in section 7(2) of the Act, which provides:

"A guardianship application may be made in respect of a patient on the grounds that -

(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature and degree which warrants his reception into guardianship under this section; and

(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received."

8. The application must be founded on the written and reasoned recommendations of two registered medical practitioners (section 70(3)). Where a guardianship application is duly made and forwarded to the local social services authority and is accepted by that authority, the application confers on the authority or person named in the application as guardian, to the exclusion of any other person, the power to require the patient to reside at a place specified by the authority or person named as guardian (section 8(1)(a)), together with other exclusive powers, including requirements in relation to medical treatment.
9. It is plain from the contemporaneous documents that in spring 1998 Mrs S and Social Services were not at idem as to what was in C's best interests in relation to residence and the prospect of guardianship. Mrs S is C's "Nearest Relative" within the meaning of section 26 of the Act, and a stage was reached at which Social Services commenced county court proceedings under section 29 to displace Mrs S as Nearest Relative on the ground that she was unreasonably objecting to the making of a guardianship application. By this time Mrs S was represented by solicitors. On 30th June 1998 there was a meeting at which the solicitor indicated that Mrs S was not in principle against guardianship, but that she wanted certain matters clarified. The solicitor's attendance note indicates that Mrs S was seeking clarification of the care plan, arrangements for contact, and the withdrawal of the section 29 proceedings.
10. On 10th July 1998 Mrs S's solicitors wrote to the Council enclosing consent to the guardianship "on the understanding that the application to remove Mrs S as the nearest relative will now be withdrawn". Accordingly, a social worker made an application for guardianship under section 7 on 13th July. It was accepted by Social Services the following day. It was subsequently renewed on 13th January 1999, 8th July 1999, 6th July 2000, and again in July 2001 shortly before the hearing of this case. Neither the original acceptance of the guardianship, nor the subsequent renewal history, is or could be under challenge in the present proceedings. The statutory procedures are that Mrs S, as Nearest Relative, has the power to discharge C from guardianship without resort to legal proceedings pursuant to section 23(2)(b); but, if she were to do so, the reality is that Social Services would immediately make an application for her displacement as Nearest Relative under section 29 on the ground set out in section 29(3)(d), namely:

"That the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public [her] power to discharge the patient from...guardianship under this part of this Act."

11. Indeed, it would be open to Social Services to make an application for displacement pre-emptively because section 29(3)(d) also embraces the situation wherein the Nearest Relative is "likely" to discharge the patient without due regard to the criteria there mentioned. Such applications fall within the jurisdiction of the county court.

The present challenge

12. On 18th March 2000 Mrs S wrote to Social Services. The letter was also signed by C. It was in the form of a request that Mrs S be permitted to see "C's files". The response of Social Services was to deny that C had the mental capacity to consent to disclosure to Mrs S. It is not suggested that that was a challengeable conclusion. In July 2000 Mrs S's present solicitors, Bindman & Partners, came on the scene. They referred to her continued objection to the guardianship and requested to see various documents in the form of recommendations and reports which had preceded the guardianship and its subsequent renewals. They maintained that even if C lacked the mental capacity to consent to disclosure, it was still possible for Social Services to make disclosure to Mrs S without contravening "the common law rules of confidentiality". On 28th July 2000 one of the lawyers in Social Services replied:

"I am placed in a very difficult position. I would like to be able to supply you with copies of the written recommendations etc to which you refer as I believe that these will confirm that everything which has been done is in C's best interests. However, I can find no authority for me to disclose this information to Mrs S or to you as her solicitors. I find it illogical, if not ludicrous, that the nearest relative should not be entitled automatically to this information but without authority I do not see how it can be disclosed. If you are aware of the authority for disclosure in these circumstances please let me know..."

13. The letter concluded with an acknowledgment that, in absence of disclosure, "there are gaps in your information and thus the advice you can give your client."
14. Further correspondence ensued. On 6th October 2000 the same lawyer wrote:

"We appear to agree on the basic issue that the common law imposes a duty upon...Social Services...not to disclose information about C. We also agree that the duty is not absolute and that the public interest that confidences should be preserved may be outweighed by some other public interest favouring disclosure. However, I am afraid that on that pint we differ. My reading of the case law leads me to conclude that disclosure should not be made to third parties without very good reasons. I do not believe that such reasons exist in this case. I am satisfied that the professionals involved in C's case have weighed up all the relevant considerations before making their decisions."

15. In the judicial review claim form pursuant to which the present application is made, it is that letter of 6th October which was identified as "the decision to be judicially reviewed". The remedies sought are directed to providing Mrs S with access to Social Services' files on C. Mrs S's reasons for wanting access have been variously described as being related to her need to understand the bases of the decisions which have been made, or, more recently, to the difficulty of obtaining legal advice about whether or not to exercise her power to discharge C from guardianship and/or her prospects of successfully resisting an application to have her displaced as Nearest Relative.
16. In his skeleton argument, Mr Hunt sought to challenge the refusal of access on three different grounds: first, that by contending that it had no authority to allow access, Social Services has failed to exercise a discretion or has fettered its discretion by the adoption of a rigid and unwarranted policy; secondly, that, if and to the extent that Social Services has considered disclosure, its approach has been wrong in law; and thirdly, that in one respect the justification advanced by Social Services for refusal is perverse. I now turn to these grounds of challenge.

Ground (1): Failure to exercise and/or fettering of discretion

17. On behalf of Mrs S, Mr Hunt submitted that the position articulated by Social Services in the letter of 28th July - "without authority I do not see how it can be disclosed" - manifests the failure to exercise a discretion or, alternatively, the fettering of a discretion by adoption of a policy that disclosure of this kind is never warranted. He contended that the correct position in law is that there is a power to disclose, provided that such disclosure does not breach the common law of confidentiality or the provisions of the Data Protection Act 1998, and that Social Services ought to have considered whether or not to exercise that power in the particular circumstances of the case.
18. In my judgment, there is a threshold difficulty about that submission. It is that the decision under challenge in these proceedings is the one contained in the letter of 6th October 2000. It is clear from the text of that letter that that decision not to disclose was expressed to have been taken on the basis that the common law of confidentiality is not absolute and that "the public interest that confidences should be preserved may be outweighed by some other public interests favouring disclosure". Although that part of the letter of 6th October comes under the heading "Access to Social Services files", on a proper construction of the correspondence it would be an artificial approach to conclude that it did not inform the decision in relation to all the material to which Mrs S seeks access. At a number of places in the pre-hearing documentation, and in the course of submissions, counsel distinguished between, on the one hand, the reports and recommendations on which the guardianship was originally accepted and subsequently renewed and, on the other hand, the Social Services files or the remainder of them, apart from those reports and recommendations. I do not find this distinction to be helpful or appropriate. The same duty of confidentiality attaches to all documents relating to C in the possession of Social Services, although it would in some circumstances be possible for a different view to be taken of disclosure of different documents when the balancing exercise is performed.
19. I therefore start from the position that the letter of 6th October conveyed a decision referable to all the documentation at issue in this case, which decision was or was purported to have been taken upon an application of the common law of confidentiality. I am wholly unpersuaded that there was an omission to apply that law or that there was a policy whereby its application was fettered. The real question in this case is not one of the failure to exercise a discretion or the fettering of one, but whether the decision not to disclose was a lawful one when tested against public law criteria. I prefer to deal with this under Mr Hunt's second ground of challenge.

Ground (2): The wrong approach

20. Mr Hunt submitted that if Social Services had adopted the correct approach and applied the correct test, they would or should have come down in favour of disclosure. I take the view that, upon strict analysis, what Social Services was required to exercise was not so much discretion as judgment. Either way, of course, the decision would be open to challenge by way of judicial review. In due course I shall address the question of the criteria for such a challenge. Before that, however, it is appropriate to summarise the different ways in which the parties approach the case and its context.
21. The circumstances emphasised by Mr Hunt on behalf of Mrs S centre upon her statutory position as Nearest Relative. This gives her the power to discharge the guardianship pursuant to section 23(2)(b), but, as I have said, the reality is, and is conceded by Social Services to be, that if she were to take any step toward exercising- that power, Social Services would apply to the county court under section 29(3)(d) to have her displaced on the ground that she was exercising her power "without due regard to the welfare of the patient or the interests of the public". In these circumstances, Mrs S, submits Mr Hunt, needs legal advice at this stage as to her prospects of success, and meaningful legal advice can only be given if she and her legal advisers have access to the documentation which she is seeking. These matters ought, it is said, to have caused Social Services to decide in favour of the disclosure, both in the context of the common law of confidentiality and pursuant to the provisions of the Data Protection Act.
22. On behalf of Social Services, Mr Maclean (supported by Miss Weereratne on behalf of the Official Solicitor who represents C's interests) sought to place the case in a different context, submitting that the Mental Health Act strikes a careful balance between patient confidentiality and the needs of a Nearest Relative for sufficient information to exercise his or her statutory functions. He referred to two particular provisions. First, by section 24(1) of the Mental Health Act:

"For the purpose of advising as to the exercise by the nearest relative of a patient who is...subject to guardianship under this Part of the Act of any power to order his discharge, any registered medical practitioner authorised by or on behalf of the nearest relative of the patient may, at any reasonable time, visit the patient and examine him in private."

23. Such a medical practitioner may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital (section 24.(2)), although, clearly, this does not give him access to documents such as the reports and recommendations which are the subject of the present dispute. It is a fact that Mrs S has never resorted to section 24. Secondly, the procedure whereby a Nearest Relative may be displaced by a county court under section 29 is amplified by rule 49.12 of the County Court Rules, part of which provides:

"(4) On the hearing of the application the court may accept as evidence of the facts stated therein any report made by a medical practitioner and any report made in the course of his official duties by -

(a) a probation officer, or

(b) an officer of a local authority or of a voluntary organisation exercising statutory functions on behalf of the local authority, or

(c) an officer of a hospital authority, provided that the respondent shall be told the substance of any part of the report bearing on his fitness or conduct which the judge considers to be material for the fair determination of the application."

24. It is self-evident that this provision is confined to disclosure of material which is relevant to a consideration of the Nearest Relative's fitness or conduct and does not extend to material which relates solely to the patient.
25. Mr Maclean submitted that section 24 and CCR rule 49.12 are part of a carefully struck balance. Section 24 provides for access by and disclosure to a medical practitioner, and by so limiting it, the legislature was deliberately adopting a policy other than one of direct and comprehensive disclosure to the Nearest Relative. Similarly, rule 49.12 deliberately stops short of requiring disclosure of the substance of reports on the patient. This coherent policy, it is said, would be undermined if a Nearest Relative could secure the kind of disclosure which is sought by Mrs S.
26. Miss Weereratne further submitted that this coherent policy gives effect to a number of factors which render a more open approach inappropriate; for example (although it is not the case here), there may be a history of abuse or neglect by the Nearest Relative which would make disclosure to him or her dangerous. In addition, she observed that even when a Nearest Relative is displaced under section 29, that is not necessarily the end of the matter because he or she can still go on to make an application to a Mental Health Review Tribunal under section 66(1), whereupon the Tribunal may direct that the patient be discharged and must do so if it is satisfied that it is not necessary, in the interests of the welfare of the patient or for the protection of other persons, that the patient should remain under guardianship.
27. I turn next to the law against which the decision of Social Services has to be judged. This is not private litigation about confidentiality; it is an application for judicial review of a decision of a public body to preserve confidentiality. Social Services had to decide whether to preserve confidentiality or whether to override it. The legal obligation of confidentiality was succinctly stated by Bingham LJ in W v Egdell [1990] Ch 359, 419, in following terms:

"The decided cases very clearly establish: (1) that the law recognises an important public interest in maintaining...duties of confidence; but (2) that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure."

28. Where a public body has an obligation of confidentiality and a party, such as a person in the position of Mrs S, invites it to override that obligation, no one expects that on each such occasion the public body will apply to the courts for a ruling. What usually happens, as happened in the present case, is that the public body decides what to do. In so doing, it must correctly understand the law of confidentiality. Its decision is challengeable by the third party only on public law grounds. The next question is as to the test to be applied by the court on such a challenge.
29. Mr Hunt submitted that this case concerns issues of fundamental human rights and that the approach of the court should not be based on Wednesbury or even the enhanced Wednesbury test as demonstrated in R v Ministry of Defence, ex parte Smith [1996] QB 517, 554 (per Sir Thomas Bingham MR). He submitted that we are in the territory mapped out by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, 1634-1636. The particular human rights upon which Mr Hunt relied are C's rights under Article 8 of the European Convention on Human Rights (which concerns the right to respect for a person's family life, his house and his correspondence), and Mrs S's rights under Article 6 (which concerns the right to a fair trial and embraces the principle of "equality of arms"). Nothing that has occurred can possibly be said to have involved a breach of C's rights under Article 8, but can it be said that Mrs S's Article 6 rights have been breached? In my view, it cannot. She remains C's Nearest Relative under the Act. She has not sought to discharge the guardianship, nor has she availed herself of section 24. It is submitted on her behalf that she is in a "Catch 22" position - unable to fund a medical examination of C pursuant to section 24 because she would need convincing evidence of the strength of her case in order to obtain funding. However, this is far from clear from the evidence which accepts that public funding is, in principle, available for such investigative work but discloses that no application for it has been made by Mrs S. In addition, Mrs S is not presently the subject of an application for displacement under section 29. If she were to become one, she would be entitled to the disclosure required by CCR rule 49.12. That is, of course, a more restricted disclosure than generally applies in civil litigation, but in my judgment there is good reason for that. Moreover, it provides the Nearest Relative with the protection of judicial involvement in the disclosure. For all these reasons, I accept the submissions of Mr Maclean and Miss Weereratne that we are simply not in Article 6 territory. Moreover, even if we were, I do not consider that Daly would avail Mrs S. As Lord Steyn observed (at page 1636) "context is everything", approving the statement of Laws LJ in Mahmood [2001] 1 WLR 840, 847:

"...the intensity of review in a public law case will depend upon the subject matter in hand."

30. This brings me back to the context and structure of the Mental Health Act. It strikes a careful balance between potentially conflicting interests, concentrating on the welfare of the patient. I accept the submissions made by Mr Maclean and Miss Weereratne. While the Act confers important rights on the Nearest Relative, it places limitations on those rights in the interests of patients. These are all matters to which Social Services and this court are entitled to have regard in a case such as this. Also, when it considers the appropriate intensity of review, a court is bound to accord considerable deference to the decision makers within the public body in the present context. It is they who have the expertise, the experience and the information. In the absence of compelling evidence, the court should be slow to quash a decision which concerned a balancing exercise in which the interests of the patient loomed large. It would not be appropriate for this court to adopt an intensity of review which suggested that, even without sight of the material which is at the heart of this dispute, it is in a position rigorously to subject the challenged decision to better analysis. It is right to subject the decision to judicial review, but with a degree of deference. Accordingly, I am not attracted by Mr Hunt's Daly submissions. As it happens, however, even if I apply more intense review than the one I consider correct, my conclusion in the present case would be no different. I am entirely satisfied that, whatever the intensity of review, the decision not to disclose in the present case was a lawful one. I accept the submissions of Mr Maclean and Miss Weereratne.
31. It will be recalled that Mr Hunt's submissions made reference to both the common law of confidentiality and the Data Protection Act. In the course of their submissions, Mr Maclean and Miss Weereratne provided me with informed assistance on this legislation and succeeded in confirming my view that, though well intentioned, it is a legal minefield and intelligible only with difficulty. Fortunately, however, I have concluded (as, I think, ultimately did counsel) that it is not actually germane to this case. It does not provide Mrs S with a right of access to the disputed material, nor would it forbid disclosure if disclosure were in other respects legally appropriate. At no stage did Social Services suggest that their decision not to disclose was conditioned by restrictions imposed by the Act. In these circumstances, it is unnecessary for me to say more about it.

Ground (3): Perversity

32. In her letter of 6th October 2000 the Social Services lawyer, having expressed the view that there is no good reason to override confidentiality in the circumstances of this case, added:

"I am also satisfied that Mrs S has been as fully involved as possible in this process. This is not a case where the parent does not know what the issues are or why decisions have been made. It is not a case where information is needed in order to evaluate and if necessary challenge those decisions. Mrs S has been fully involved in the care planning process for C and is aware of all the professional opinions, the reasons for them and the reasons for the decisions which have been made."

33. The same writer had made a similar point in her earlier letter of 28th July 2000:

"I think that I should stress that Mrs S has been fully involved in all the discussions and planning related to C's future. I doubt that there is any information of which she is not aware."

34. Mr Hunt submitted that this is perverse reasoning by which to justify the present refusal of access because it is consistent with there being no duty of confidentiality or with the duty having already been overridden for good reason in such a way that Social Services cannot now rationally justify refusal of access.
35. It is certainly the case that Mrs S has attended numerous meetings before and since the commencement of the guardianship, has participated in them, and, through them, has become aware of the opinions of some of the professionals involved and the reasons for those opinions. However, it is apparent from the exhibited minutes that the meetings were mainly concerned with the formulation and monitoring of the nuts and bolts of the care plan for C. Mr Maclean submitted that, whilst Mrs S has been fully involved in the care planning process, this does not mean that she is fully aware of everything in Social Services' file. In truth, she is not. If she were, the present proceedings would be less important to her.
36. In my judgment, it is clear from the letter of 28th July 2000, when read as a whole, that when the lawyer doubted that there was any information of which Mrs S was not aware, she was referring to part but not the whole of the contents of the file. She was not then referring to, for example, the psychiatric reports and recommendations upon which the guardianship had been accepted and renewed and which were referred to elsewhere in the letter. I place the same construction on the letter of 6th October 2000. Indeed, the whole basis of the present dispute between Mrs S and Social Services is based on their common, and no doubt correct, understanding that what she is seeking in these proceedings is access to material which she has never seen. I am entirely satisfied that no perversity, irrationality or inconsistency has been established, and this ground of challenge also fails.

Conclusion

37. It follows from what I have said that this application for judicial review fails and must be dismissed. Early in his submissions Mr Maclean acknowledged the sincerity and good faith of Mrs S's views concerning C's care and welfare. I readily adopt that acknowledgment. It is clear to me that although she eventually consented to the guardianship, albeit reluctantly, she has never deviated from the view that C's interests would be better served by his being looked after by her in the family home, with what she would consider appropriate support from Social Services. However, C is the subject of a lawful, subsisting and unchallenged guardianship, in the context of which I find no unlawfulness in the position of Social Services with regard to the refusal of access to the material sought by Mrs S.
38. I should add that I think there was a sentence or two missing from something that I had put in a draft about Article 8, but I shall add that to the approved judgment.
39. MR MACLEAN: My Lord, as to costs, the Court of Appeal has recently laid down guidance for courts in dealing with matters where one party is assisted by public funding. I understand that my learned friend Mr Hunt's client is assisted by the Legal Services Commission. My Lord may not be familiar with the case of Gunn. Can I just hand it up.
40. MR JUSTICE MAURICE KAY: Yes.
41. MR MACLEAN: It actually simplifies the task of the trial court that it is referred to.
42. MR JUSTICE MAURICE KAY: I do not think I have seen this.
43. MR MACLEAN: It is an important and recent case of the Court of Appeal, decided in June of this year. Perhaps your Lordship will take a moment to read the headnote. The important point is at paragraph 28.
44. MR JUSTICE MAURICE KAY: Paragraph 28?
45. MR MACLEAN: Yes. Your Lordship will see -- perhaps just before we get there -- that the statute which now governs these matters is the Access to Justice Act 1999. The relevant section is section 11, which is set out at paragraph 12 of the Court of Appeal's judgment. The old Legal Aid Act is gone and the old provision of making so-called football pools orders is gone with it.
46. Your Lordship sees from paragraph 12:

"Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings or part of proceedings funded for him shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including..."

47. And then various matters are set out.
48. 11(3):

"Subject to subsections (1) and (2), regulations may make provision about costs in relation to proceedings in which services are funded by the commission for any of the parties as part of the Community Legal Service."

49. Section 11(4) says what those regulations may in particular do. The regulations themselves are to be found at paragraph 14 of the judgment, over the page, and your Lordship sees in passing paragraph 13 that:

"...the power to require payment by the commission to a party for whom services are not funded by the commission is now governed by the Regulations..."

50. The Regulations are then set out, and Regulation 9(1) (paragraph 14, page 1640):

"Where the court is considering whether to make a section 11(1) costs order, it shall whether, but for cost protection, it would have made a costs order against the client and, if so, whether it would, on making the costs order, have specified the amount to be paid under that order."

51. Pausing there, your Lordship must therefore ask himself whether, if Mr Hunt's client was not publicly funded, your Lordship would make an order. In my submission, your Lordship would or should, and your Lordship is in a position in this case (and I think this is common ground) to specify the amount which would be paid under any such costs order.
52. MR JUSTICE MAURICE KAY: It was a two-day case and there were no schedules provided.
53. MR MACLEAN: Yes, so I think that is common ground. Then one sees 9(2):

"If the court considers it would have made a costs order against the client, but that it would not have specified the amount to be paid under it, the court shall, in making the section 11(1) costs order: (a) specify the amount (if any) that the client is to pay under that order if, but only if..."

54. And there are two conditions which are not satisfied in my submission.

"(b) otherwise, it shall not specify the amount the client is to pay under the costs order."

55. And then what happens in Regulation 5 is that:

"The amount (if any) to be paid by the client under an order made under paragraph (2)(b)...and any application for a costs order against the commission, shall be determined in accordance with regulation 10, and at any such determination following an order made under paragraph (2)(b), the amount of the full costs shall also be assessed."

56. That is all done by the costs judge on another day in a different court and not by your Lordship. Therefore, one throws the facts together at paragraph 28, as I indicated, where the Master of the Rolls sets out that a two-stage process now applies to publicly funded parties who have lost cases in the first instance. I will leave your Lordship to read paragraph 28.
57. MR JUSTICE MAURICE KAY: Yes.
58. MR MACLEAN: So, my Lord, what I invite your Lordship to do is to conclude, first of all, that your Lordship would have made a costs order against Mr Hunt's hypothetically privately paying client. Your Lordship would not have been in a position to assess those costs. Your Lordship should therefore, in my respectful submission, make a section 11(1) costs order which does not specify the amount to be paid by my learned friend's client, and I do not invite your Lordship to make any particular findings of fact under Roman (iv) of that paragraph.
59. Your Lordship appreciates that the position then is that it is down to my clients to consider what, if any, action they will take in seeking to enforce any costs order and seeking to make any application against the commission, which, in the first instance, requires my clients to be able to show that we would be prejudiced by not having an order. It may be -- your Lordship, there are no guarantees, but it may be that the matter does not proceed any further, but that is not a matter for your Lordship for today. Your Lordship simply makes the section 11(1) order.
60. MR JUSTICE MAURICE KAY: But what section 11(1) order? That I would have made --
61. MR MACLEAN: Your Lordship --
62. MR JUSTICE MAURICE KAY: -- an order against a privately funded litigant in the position of Mrs S?
63. MR MACLEAN: Yes, so your Lordship then makes an order against Mrs S.
64. MR JUSTICE MAURICE KAY: Yes.
65. MR MACLEAN: A section 11(1) order against Mrs S, which does not specify the amount which she has to pay, leaves it at that, and --
66. MR JUSTICE MAURICE KAY: It does not add any words about adjourning the assessment or --
67. MR MACLEAN: No, because the matter only comes to assessment at the stage two process if and when my clients make the relevant application before the costs judge.
68. MR JUSTICE MAURICE KAY: So it is taken out of the hands of the trial judge as to whether there should be any restriction on the enforcement of an order.
69. MR MACLEAN: That is right. The only control, if you like, that your Lordship has would be in making any findings of fact relevant to the determination of the amount of costs.
70. MR JUSTICE MAURICE KAY: Yes.
71. MR MACLEAN: But your Lordship is not in a position to do that.
72. MR JUSTICE MAURICE KAY: Yes.
73. MR MACLEAN: So I am afraid that your Lordship, it appears from the Court of Appeal's judgment, has to go through this process first.
74. MR JUSTICE MAURICE KAY: And the order you are seeking is against Mrs S?
75. MR MACLEAN: Against Mrs S.
76. MR JUSTICE MAURICE KAY: And not against the Commission?
77. MR MACLEAN: No, because one of the other things that this case does is to take away from the first instance judge any question of making orders against the commission.
78. MR JUSTICE MAURICE KAY: That is more or less the position previously. In the Court of Appeal, different considerations apply.
79. MR MACLEAN: Yes, and it still is, because the need to show particular prejudice -- I forget the precise ones -- which apply at the first instance still apply under these new regulations.
80. MR JUSTICE MAURICE KAY: What happens in principle if your clients sought to enforce the order against Mrs S before the costs judge? She would then raise the argument, well, I cannot afford it or whatever.
81. MR MACLEAN: Yes. It is not -- that is right. He would have to decide whether it was reasonable for her to pay any particular sum.
82. MR JUSTICE MAURICE KAY: Yes.
83. MR MACLEAN: He might conclude that it is not reasonable for her to pay any sum, any significant sum, and then he would have to consider any application, if there were one, against the commission, though it is a little difficult to see how a public authority could make such an application. No doubt there are circumstances. So I do not make these submissions because I am in any way threatening Mrs S that we are going to make an order, but it appears that your Lordship has to jump through these hoops.
84. MR JUSTICE MAURICE KAY: Well, has to if I am invited to.
85. MR MACLEAN: Well, I am inviting you to. My learned friend helpfully asks me whether there is a time limit on the enforcement of the order, and the answer to that is yes. Can I take your Lordship to 1641 of the report. It is regulation 10. Your Lordship sees 10(1):

"The following paragraphs of this regulation apply where the amount to be paid under a section 11(1) costs order, or an application for a costs order against the commission, is to be determined under this regulation, by virtue of regulation 9(5).

(2) The receiving party [that is my client, assuming your Lordship was to make such an order] may, within three months after a section 11(1) costs order is made, request a hearing to determine the costs payable to him."

And then --

86. MR JUSTICE MAURICE KAY: So you have got to seek to enforce it within three months; and if you do not, it lapses.
87. MR MACLEAN: Yes, that is right. And then regulation 10 sets out a fiendishly complicated set of provisions dealing with the hearing before the costs judge.
88. MR JUSTICE MAURICE KAY: So if she wins the lottery after four months, she is in the clear.
89. MR MACLEAN: If she wins it in 16 weeks' time, that is right.
90. MR JUSTICE MAURICE KAY: Mr Hunt, do you agree with that analysis, and do you have any opposition to the order?
91. MR MACLEAN: My Lord, I do not think I can disagree with that analysis. On first impression, it does seem rather oppressive. The three-month time limit does make it somewhat --
92. MR JUSTICE MAURICE KAY: That is the saving grace. In that sense, it is better for funded litigants than the previous one.
93. MR HUNT: My Lord, yes. It would be considerably less oppressive still if it could be made clear to the court by my learned friend that this is in the nature of a safeguard against the contingency of a lottery win by Mrs S. In a sense, a three-month costs order against an individual who is publicly funded could be very oppressive in their dealings with the authority during that period, and of course there is an ongoing relationship inevitably between Mrs S and the authority.
94. If it is understood of course that the only purpose is if, of course, she does come into the money, as it were, if that is the purpose of the order, that is perfectly fine.
95. MR JUSTICE MAURICE KAY: At the moment, neither Mr Maclean nor I know anything about Mrs S's needs, save that she is a funded litigant and therefore comes within the financial criteria for that status.
96. MR HUNT: My Lord, yes.
97. MR JUSTICE MAURICE KAY: So really it must follow that it would be otiose for a public body to try to enforce the order unless there is some other information that came to light.
98. MR HUNT: My Lord, yes.
99. MR JUSTICE MAURICE KAY: I am not suggesting it is so in this case. I am sure it is not. But if they were to discover that a hundred litigants had in fact pulled a fast one in describing their earnings, or if there was ex post facto wealth, well, then they would make a move. But otherwise, it is a conflict.
100. MR HUNT: My Lord, yes. I simply seek clarification, bearing in mind from the prospective of Mrs S it will seem very oppressive that any order of costs the court makes against her is only enforceable during the three-month period could actually have a quite chilling effect in relationship to her dealings with the authority.
101. MR JUSTICE MAURICE KAY: Yes. By inference, as things stand today, you do not understand that --
102. MR MACLEAN: That is right, my Lord.
103. MR JUSTICE MAURICE KAY: -- they are going to make a move.
104. MR MACLEAN: That is right. One does not know whether information may come to light, but I am certainly not instructed that there is presently any intention to make such an application.
105. MR JUSTICE MAURICE KAY: Generally speaking, authorities have better things to do than spend their time seeking such information.
106. MR HUNT: I imagine my clients have.
107. MR JUSTICE MAURICE KAY: Yes, certainly.
108. MR HUNT: My Lord, I am very grateful for that indication from my learned friend. And on that basis, my Lord --
109. MR JUSTICE MAURICE KAY: You need a direction for assessment in any event?
110. MR HUNT: My Lord, yes. On that basis, I do not intend to disagree with the proposed order.
111. My Lord will not be surprised that I do make an application for permission to appeal in the terms of the test in rule 52.36. My Lord of course might be aware that under the first limb of that, the real prospect of success test, my Lord should only refuse leave if satisfied that an appeal has no realistic prospect of success. My Lord, in my submission there is a realistic prospect of an appeal in this case succeeding, albeit given my Lord's careful reasons.
112. There is a central issue here concerning the balance essentially between Article 8 rights and the Article 6 rights of Mrs S, an issue of some complexity, which does take one into the heart of the difficult Human Rights Act territory of what exactly the principle of deference requires in the relationship between Daly and the traditional Wednesbury or heightened scrutiny approach.
113. My Lord, in view of the rapid development of the law on that, in Daly itself and in subsequent cases trying to work out what paragraph 28 of Lord Steyn's "what the context requires" actually means, in my submission there is a realistic prospect of this appeal succeeding in relation to that part of the judgment concerning whether Mrs S's fair trial rights are in fact being interfered with and are therefore in play, and in relation to whether it is appropriate to defer to the view of the authority in relation to that, in relation to whether there is a breach of Article 6, of Mrs S's Article 6 rights.
114. My Lord, there is a recent judgment which was handed down after argument in this case, and I have a copy of all that is available, which is the digest from the Butterworths Direct service. If I might very briefly hand that to my Lord and to my learned friend just to make one very brief point.
115. MR JUSTICE MAURICE KAY: Thank you very much. Yes.
116. MR MACLEAN: My Lord, it might be quicker to take a couple of minutes perhaps to just read this digest. It is a decision of Munby J in July.
117. MR JUSTICE MAURICE KAY: Yes.
118. MR HUNT: My Lord, the passage to which I refer, of course it is quite removed from the circumstances of this case, but it is the passage at the beginning of the second page:

"Article 6, unlike article 8 of the European Convention on Human Rights, was not subject to any words of limitation. Primacy had to be given to the right to a fair trial and that trial did not require, or permit, a balance to be struck between the rights it guaranteed and other considerations, such as the public interest. In the instant case, although R had an absolute right..."

It goes on:

"...although his absolute right could not be compromised by reference to article 8..."

119. My Lord, the court in this case does appear to have ruled that it is not permissible to balance Article 8 rights against Article 6, if Article 6 is in play. The right to a fair trial is not subject to qualification if Article 8 is in play. My Lord, I make simply this point in relation to the permission to appeal application, that my Lord has said it is appropriate to defer to the authority's assessment in relation to the impact on Mrs S's right of access to a tribunal or the fairness of the trial she may receive under a section 29 application to displace her. My Lord, in my submission there is an issue for the Court of Appeal, an issue of some complexity, as to whether it is appropriate to defer in those circumstances to an assessment of the impact on an Article 6 right.
120. MR JUSTICE MAURICE KAY: Yes.
121. MR HUNT: My Lord, that is the principle application, the principle ground of the application for permission.
122. MR JUSTICE MAURICE KAY: It is implicit in my judgment that I do not consider there was a breach of an Article 6 right.
123. MR HUNT: My Lord, yes. My Lord has said that on whatever approach to the intensity of review.
124. MR JUSTICE MAURICE KAY: Yes.
125. MR HUNT: My Lord has my submission. In addition to the real prospect of success claim, in my submission there is a strong public interest in the important issues which have been raised by this case being considered by the Court of Appeal, not only because of the complexity of the interaction between the different legal regimes, confidentiality and the Data Protection Act and Article 8, but also because of the importance of the general question of access to Social Services files, and to the complexity of the law which applies, and the particular potentially in light of Munby J's judgment. My Lord, that is the application.
126. MR JUSTICE MAURICE KAY: Thank you very much.
127. MR MACLEAN: My Lord, on this case -- I would not bother to make any submission on the permission to appeal. It is a matter for the court to decide whether the case is sufficient to grant permission. But just on this case, if I may very briefly, it is clear that R, the father of one of the children, was a party to proceedings, and they were all parties to the proceedings. The question was whether, in those proceedings, somebody's Article 6 rights were outweighed by somebody else's Article 8 rights, or vice versa.
128. In this case there are not any relevant proceedings, and if there are, there are provisions in the rules, which your Lordship said in the judgment, which provide for disclosure to Mrs S on a limited basis.
129. MR JUSTICE MAURICE KAY: Here there is a statutory scheme, and in a special area, which may or may not be consistent with a right to a fair trial. I held that it is consistent with the right to a fair trial.
130. MR MACLEAN: That is right. My Lord, that is all I have to say.
131. MR JUSTICE MAURICE KAY: Yes.
132. Mr Hunt, I am going to refuse you permission. I do not think there is a realistic prospect. You will have to ask the Court of Appeal.
133. Thank you both very much.