QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN
On the application of
BUSHELL AND OTHERS
|- and -
|NEWCASTLE LICENSING JUSTICES
RINDBERG HOLDING COMPANY LIMITED
PEEL HOTELS PLC
NEWCASTLE CITY COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Rankin (instructed by Eversheds) for the Interested Parties
Mr John Saunders QC (instructed by Mincoffs) for the Second Defendant
Mr Julian Knowles (instructed by Mincoffs) for the Second Defendant
Crown Copyright ©
Mr Justice Owen:
The Gresham is located in Jesmond, a high density residential area of Newcastle upon Tyne. Osborne Road is the main arterial road running through the area. In recent years there has been a proliferation of licenced premises in Osborne Road. They are illustrated on the plan exhibited to the witness statement from one of the Claimants, Ronald Bushell. The proliferation of licenced premises has had consequences that are understandably of concern to the local residents. The position was succinctly summarised in a letter from the Northumbria police to the Clerk to the Licensing Justices dated 4 April 2003 in relation to the special removal application in the following terms
"The development of Osborne Road has seen an increase in incidents of disorder and drunkenness and in complaints of anti-social behaviour from members of the public and residents."
Application for a Special Removal
This application will be adjourned to a new hearing date, which has yet to be fixed. If you intend to attend at the next hearing, please leave your name and address with the usher. You will be advised of the new date and venue in due course.
It is hoped to finalise the matter before Easter.
Thank you for attending today.
Dated; 11 March 2003.
A J Legard
The relevant statutory provisions are contained in Sections 12 and 15 of the Licensing Act 1964.
"12 Restricted power of licensing justices to refuse renewal or transfer of old on-Licences.
(1) In this Act-
"Old on-Licence" means a Justices' on-licence, other than one for the sale of wine alone…granted by way of renewal from time to time of a licence in force on 15th August 1904, or of a licence that before that day had been provisionally granted and confirmed under section 22 of the Licensing Act 1974 where the grant and confirmation have been subsequently declared final, except that it does not include a licence under section 37 of this Act or granted by way of renewal from time to time of a licence so varied …
"old beerhouse licence" means an old on-licence for the sale of beer or cider…
no account being taken of any transfer nor, except for the purpose of determining whether a licence is an old beerhouse licence, of any removal.
(2) Subject to any disqualification of the applicant or of the premises to which the application relates, licensing justices shall not refuse an application for the renewal of an old on-licence except on one or more of the following grounds, that is to say -
(a) in the case of an old beerhouse…
(b) in the case of any other old on-licence, those specified in subsection (4) of this section;
(4) The renewal of an old on-licence other than an old beerhouse licence may be refused on the grounds-
(a) that the applicant is not is not a fit and proper person to hold the licence or; or
(b) that the licenced premises have been ill-conducted or are structurally deficient of structurally unsuitable.
and for the purposes of paragraph (b) of this subsection premises shall be deemed to have been ill-conducted if, among other things, the holder of the licence has persistently and unreasonably refused to supply suitable refreshment, other than intoxicating liquor, at a reasonable price, or has failed to fulfil any reasonable undertaking given to the justices on the grant of the licence.
15 Special removals of old on-licences
(1) Where application is made for the special removal of an old on-licence from any premises in a licensing district to premises in the same district on the ground-
(a) that the premises for which the licence was granted or are about to be pulled down or occupied under any Act for the improvement of highways, or any other public purpose; or…
the provisions of section 12 of this Act shall apply as they apply to a renewal, subject to the restrictions on removals imposed by Parts VI and VII of this Act and subject to subsections (3) and (4) of this section.
(2) A removal to which those provisions apply as aforesaid is in this Act referred to as a special removal.
(3) In the application of those provisions to the special removal of a licence section 12 of this Act shall have effect as if the words 'that the premises to be licensed' were inserted in subsection (4)(b) before the words 'are structurally deficient or structurally unsuitable'.
The Claimants contend that Ultimate deliberately put itself in a position in which it could take advantage of the special removal provisions of the Act in order to circumvent objections to the grant of a licence for the Gresham, and that the application was therefore capable of amounting to an abuse of process. It is submitted that the issue having been raised, the Licensing Justices ought to have heard evidence so as to enable them to resolve the issue. The Justices in fact ruled that –
"..we do not consider that the course of action can amount to an abuse of process of this court."
"…court proceedings may not be used or threatened for the purpose of obtaining for the person so using for threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused."
"When [the process of the court] is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, it they can, before any harm is done. It they cannot stop it in time, and harm is done, they will give damages against the wrongdoer…Sometimes abuse can be shown by the very steps being taken in the courts…At other times the abuse can only be shown by extrinsic evidence that the legal process is being used for and improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used."
But as Scarman LJ said at 498 –
"In the instant case we are being asked to pass judgment on the respondent's purpose upon a preliminary application, the effect of which, if successful, will prevent him bringing to trial actions in each of which (it was admitted in argument) he is pleading a cause of action recognised by the law. It is right, therefore, that to obtain before trial the summary arrest of a plaintiff's proceedings as an abuse of the process of the court, the task of satisfying the court that a stay should be imposed is, and should be seen to be, a heavy one: see Shackleton v Swift  2 KB 302, 311-12.
Unless the court is satisfied, a stay is a denial of justice by the court – a situation totally intolerable.
In the instant proceedings the defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out "to effect an object not within the scope of the process" Grainger v Hill 918380 4 Bing (NC) 212, 221 per Tindall CJ. In a phrase, the plaintiff's purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought, see In re Marjory…"
Similarly Bridge LJ said at 503 –
"In my judgment one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all., that is an abuse of process. There two cases are plain; but there is, I think, a difficult area in between. What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown alto to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it. But on the view I take of the facts in this case the question does not arise and it is neither necessary nor desirable to try to lay down a precise criterion in the abstract."
The second preliminary issue raised before the Justices was whether the special removal procedure under section 12 and 15 of the Act is compatible with the Human Rights Act 1998 (HRA). The Justices ruled against the Claimants holding that –
"In our view the Licensing Act 1964 is compatible with the Human Rights Act in view of the remedies available to aggrieved persons. This includes sections 12 and 15 of the Act. In our view Article 8 [of the European Convention] is not engaged."
Article 6, "Right to a fair trial" states –
"1. In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by and independent and impartial tribunal established by law."
The material parts of Article 8 state -
"1. Everyone has the right to respect for his private and family life, his home…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of …public safety or the economic well being of the country…or for the protection of the rights and freedoms of others."
Article 1 of Protocol 1 states –
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".
1. whether Article 8 and Article 1 of Protocol 1 are engaged, ie whether the Claimants' rights under those articles are capable of being infringed by the grant of a special removal of the Mims licence to the Gresham,
2. if so whether the determination of Ultimate's application for a special removal is a determination of the Claimants' rights such as to engage Article 6.
If the answer to those questions is in the affirmative then a further issue arises, namely
3. whether the special removal procedure under sections 12 and 15 of the Act is compatible with the ECHR.
It is accepted on behalf of the Claimants that the grant of a special removal will not of itself amount to a breach of the Claimants' convention rights. Their case is that infringement of their rights is the likely consequence of the grant of the special removal. In essence they contend that the problems of noise, and drunken and loutish behaviour already experienced in Osbourne Road as a result of the proliferation of licensed premises and the manner in which their clientele behave particularly after leaving the licensed premises, are likely to increase, and will spread to their immediate vicinity. As to the latter point the evidence from the Claimants is to the effect that they are already subjected to such behaviour in their immediate locality. Their fear is that it is likely to increase.
"From the terms 'victim' and 'violation' in Article 34 of the Convention, like the underlying philosophy of the obligation to exhaust all domestic remedies imposed by Article 35, it can be deduced that, in the system for the protection of human rights as envisaged by the , framers of the Convention, exercise of the right of individual petition cannot have the aim of preventing a violation of the Convention. It is only in wholly exceptional circumstances that the risk of future violation may nevertheless confer the status of 'victim' on an individual applicant, and only then if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally: mere suspicions or conjectures are not enough in that respect."
"60. …The answer to that question has to be no, even if one strictly applies the WHO guideline, ignoring the fact that it is only a guideline and not a mandatory requirement, and that a breach of the guideline does not automatically mean that there is serious pollution, much less that there is any significant danger to health.
61. The claimant's is no more than a generalised concern as to the effects of the incinerator in terms of increased nitrogen dioxide emissions. Such generalised environmental concerns do not engage article 8, which is concerned with an individual's right to enjoy life in his own home."
The second issue is whether the determination of Ultimate's application for a special removal is a determination of the Claimants rights such as to engage Article 6.
The issue then arises as to whether the special removal provisions of sections 12 and 15 of the Act are compatible with the ECHR. The Claimants submit that on a narrow construction they are not compatible with Article 6 as there is no opportunity within the special removal procedure to object on the grounds that the grant of the special removal would affect their convention rights.
"We do not think this is appropriate as it would require a distortion of the word 'structural' as used in the Act"
In my judgment they were right to do so. It is simply not possible to interpret sections 12 and 15 so as to comply with Article 6.
"In our view the Licensing Act 1964 is compatible with the Human Rights Act in view of the remedies available to aggrieved persons."
1. a closure order under sections 170A-K of the Act, at the instigation of the police,
2. the revocation of the licence by the Justices under section 20A of the Act on the application of the police, the Claimants, the local authority, or of their own motion,
3. the exercise by the local authority of its statutory powers under the Environmental Protection Act 1990.
It would of course also be open to the Claimants to take proceedings for nuisance, seeking injunctive relief if appropriate.
The Claimants sought an adjournment of Ultimate's application on the basis that the position with regard to planning consent for the proposed user of the premises is unresolved. The background against which the Claimants made their application for an adjournment is that after the refusal of Ultimate's application for planning permission to extend the Gresham, they revised their proposal for the premises and say that they have been advised that their current proposals are within the existing planning permission. They do not therefore propose to apply for a change of use. It appears that the local authority take a different view. But there is at present no live application before the local authority.
"On the question of planning permission;
Our starting point is of course the Good Practice Guide, as reflected in our own policy, that planning matters ought to be left to the planning authorities – the city council.
In practice an applicant has to make a number of applications in order to operate licensed premises, for the sale of intoxicants or for any other licensed activity.
In particular he has to apply for planning permission and for the licence. WE leave the question of which should be applied for first to the applicant.
It follows that whether planning permission is not applied for, not granted or actually granted, does not impact upon the decision whether a licence should be granted for the sale of intoxicants.
Planning permission is itself a form of licence to operated particular premises for a particular purpose. It may contain restrictions and requirements it does not in our view directly affect "structure".
So far as the Gresham Hotel is concerned, it operated as a restaurant and residential establishment for a number of years, as premises of public resort, with the benefit of a justices' on licence, albeit restricted by Part IV conditions. The class of permission was for A3 use which includes, at least for the present time, for our purposes, bars and hotels etc.
The dispute, if there is one, is as to the use of the premises applied for – a full on-licence without restrictions. We do not know whether the dispute still exists, the nature of the application which was refused, and whether a further application is to be, or has been, lodged.
Planning matters are not within our jurisdiction and are left out of consideration, for the reasons indicated above.
The issue in this case, if there is one, is not a simple black and white issue but we are powerless to decide whether the premises could or could not be used, without breaking planning regulations.
In this case we will not take planning matters into account."
"One argument against the grant of a Special Removal which has been raised by a number of people is that the Gresham Hotel does not have planning permission for the proposed use or class of use.
In this regard the licensing justices have never required an applicant for a new licence, or a removal of an existing licence, to have the necessary permission prior to consideration of an application. It is left to the applicant. If he fails to obtain the relevant permission, he will not be able to use the premises for the intended use.
Although Special Removals are somewhat unusual, they are not considered so unusual by the licensing justices as to form an exception to the general principal (sic).
Also, it is not considered that the presence or absence of the relevant permission affects "structural" matters as mentioned above. The premises will be structurally suitable and convenient, or not, as the case may be. It is a question of fact, divorced from the question of the relevant planning permission.
It may be observed that the applicant is taking a considered risk in that if the removal is granted and planning permission is (again) refused, the premises will not be able to operate as anticipated. That is a matter beyond the jurisdiction of the licensing justices and is, hence, left out of their considerations."
"Whether or not an adjournment should be granted in any particular case, more particularly whether or not fairness so clearly demands and adjourment that a refusal will found a successful judicial review application, must inevitably depend on a variety of considerations. These are likely to include the importance of the proceedings and their likely adverse consequences to the party seeking the adjournment; the risk of his being prejudiced in the conduct of the proceedings if the application is refused, the risk of prejudice or other disadvantage to the other party if the adjournment is granted; the convenience of the court and the interests of justice generally in the efficient dispatch of court business; the desirability of not delaying future litigants by adjourning early and thus leaving the court empty; and the extent to which the applicant himself has been responsible for creating the difficulty which his said to require the adjournment in the first place; the extent to which, in short he has brought the problem upon himself."
It is submitted on behalf of Rindberg and Peel, the Interested Parties, that sections 12 (4) and 15 should be given a generous construction so as to allow consideration of the police, Council and residents' objections to the special removal. They contend that the term 'premises' should be construed as extending to the entire site within which the Gresham is located, ie to the outside areas in particular to the front and rear of the building. The Justices did not make an express finding on this issue, although it appears that it was raised before them.
"28. Whilst not referring to Alice in Wonderland, both counsel seem to be agreed that in the same lease, indeed in the same clause of the lease, the word 'premises' may bear one meaning at one time and another at another time. In our judgment it is clear that 'premises' is a chameleon-like word which takes its meaning from its context. Since it can mean almost anything the task of the court is to give the word the meaning which it most naturally bears in its context and as reasonably understood by the commercial men who entered into the agreement."
"I do not find anything in the Licensing Act which limits the word 'premises' to an entire building. In my opinion any part of a building which is defined by metes and bounds is 'premises' in respect of which a licence can be granted, provided it is in the justices' opinion structurally adapted for the sale of liquor." at p 746.
But the issue in Griffiths was whether a licence could be granted in relation to a defined space within Harrods. I do not find it to be of assistance in relation to the issue raised on behalf of Rindberg and Peel.
"44…the interpretative obligation under s 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings."
"In my view s 3 of the 1998 Act requires the Court to subordinate the niceties of the language of se 41(3)(c) of the 1999 Act, and in particular the touchstone of coincidence, to broader considerations of reference judged by logical and commonsense criteria of time and circumstance."
MR JUSTICE OWEN: Mr Watson, Mr Knowles, there will be judgment in the terms that I have handed down. I apologise for the delay in getting the final version printed up. It does not depart from the version that you have had the opportunity to see, save for some minor textual alterations.
MR KNOWLES: Thank you, my Lord. My Lord, I do not know if it has reached you, but I have prepared a draft order. Could I hand it up, please? (Handed) My learned friend has a copy.
MR WATSON: Perhaps before we consider the terms of the order I could make an application for permission to appeal on the basis that some of these orders may perhaps change if permission were granted.
MR JUSTICE OWEN: Yes.
MR WATSON: My Lord, the application is based on what is referred to as issue 3 in your Lordship's judgment. If I could take to you that. It is at paragraph 45 of the draft version. I assume that has not changed. It seems it is the same. I am working from the draft. If there are any changes that I am unaware of, I apologise.
MR JUSTICE OWEN: There are no changes of significance, Mr Watson.
MR WATSON: My Lord, the issue that I would seek to address you on is a problem that we see which has arisen in relation to issue 3. I shall approach it in three ways with the one central issue in the middle. You have made a finding my Lord in paragraph 46 that it is simply not possible to interpret sections 12 and 15 so as to comply with Article 6.
MR JUSTICE OWEN: Yes.
MR WATSON: We do not disagree with that finding.
However, my Lord, you then continue to find that there is no breach of Article 6 because of different proceedings that can be brought. As I understand it, they are listed under paragraph 48 1, 2 and 3 closure order, relocation and powers under Environmental Protection.
The first thing to say in relation to those three possibilities is, of course, only number 2 actually applies to the claimants because it is only a relocation of a licence that they themselves can seek.
Therefore, in my submission, what happens between paragraphs 45 and 48 is that there is a subtle jumping of tracks from consideration of Article 6 as at paragraphs 45 and 46, and then a move over to considerations of Article 8 and Article 1 protocol.
If I could characterise this section of the judgment as follows: it seems to be suggesting that there is a breach of Article 6 in this set of proceedings. However, the claimant's Article 8 and Article 1 protocol rights are protected by an entirely different set of proceedings that actually go to a different issue, particularly as relocation proceedings would be ex post facto.
Therefore, in this judgment the suggestion, in my submission, is that there is a breach of Article 6, but a different set of proceedings are tehre to protect the rights of Article 8 and Article 1 protocol.
The actual issue of the Article 6 right is not addressed. I would submit that it is that right which is left hanging. I do not think this is going too far to suggest that it is akin to say in criminal proceedings that the trial should not be fair, and therefore Article 6 is a prima facie breach of Article 6. However, if after an unfair trial you are sent to prison, you can apply for a different set of proceedings, such as habeas corpus to try and secure your release.
MR JUSTICE OWEN: The two are directly linked in this case. The whole question of Article 6 only arises in relation to any application of infringement of Article 8 and protocol Article 1. Indeed, taking it in chronological order, the Article 6 right emerges in paragraph 44, your Lordship finds that Article 6 is engaged. Having found that there is an engagement, those proceedings themselves must be fair. There can be a limitation on those proceedings if other proceedings that determine the same right can be brought.
However, there is a clear finding that there is no such set of proceedings within sections 12 and 15, but a different sets of proceedings can be brought. Rather than the criminal analogy, perhaps the analogy of the circumstances in Sander v Sweden they are much more closely aligned to the present facts, as I am sure you remember from the argument that took place at the hearing. The Swedish authorities granted a licence. A third party claimed an interest. It was found that they did have an interest. It would not have been sufficient for the Swedish authorities to turn around and say "You can bring a claim for nuisance if this all goes wrong", which in my submission is what is found with respect in paragraphs 45 to 48 of this judgment. That is one approach.
The second approach would be to look simply at the terms of the Human Rights Act, in particular section 6. If the Licensing Committee are to act on this judgment, according to this judgment when they make findings or when they come to a determination of sections 12 and 15, they will be acting unlawfully because those provisions in sections 12 and 15 do not comply with Article 6 We have that as a finding here.
They will, therefore, be acting incompatibly with the Convention when they act within those provisions and, therefore, their acts will be unlawful.
The final way of approaching this is to step back perhaps and to see the structure of these few paragraphs. I respectfully submit that what has occurred here is that the questions of pursuing a legitimate aim and proportionality, which I see your Lordship comes to under paragraphs 47 and 48, should be considerations, in my submission, within the consideration of Article 6. However, there is a finding here of incompatibility with Article 6. Then outside of Article 6 considerations of the Article 1 protocol have to be considered.
Having found incompatibility, the judgment then goes on to suggest however that incompatibility is justified because it pursues a legitimate aim and is proportionate. In my submission, the considerations of legitimate aim and proportionality come within the finding of Article 6, or at least they should do. Those considerations should be aimed at sections 12 and 15 to see if they themselves are proportionate to pursue a legitimate aim.
In my submission, it is not simply a question of language; the problem underlying it is the fact that sections 12 and 15 are determinative of this particular right which is the right to make representations as to the special removal of an old licence. It is that particular right that is engaged, according to your Lordship's judgment. It is that particular right to a fair hearing that is being breached.
MR JUSTICE OWEN: I hear how you put it, Mr Watson. Mr Knowles?
MR KNOWLES: My Lord, Mr Watson has made a valiant attempt. We say what is effectively being done is seeking to re-argue that which has already been argued and determined. In our respectful submission, it should be left to the Court of Appeal to decide whether to grant permission.
My Lord's judgment, if we may respectfully say so, is entirely consistent with the reasoning of cases such as the Mayor of London case. In each case Article 6 challenges and rejected in analogous situations where objectors seek to challenge environmental measures of one form or the other. We would say that if there is a point for appeal, it should be for the Court of Appeal to determine. With respect, my Lord is right for the reasons my Lord has given.
MR WATSON: My Lord, I simply suggest that has not addressed the nub of this point at all. There has been no attempt to draw any analogies between cases and this particular case. If I can read just one paragraph from the judgment of Ashenden which was a --
MR JUSTICE OWEN: Mr Watson, you are going to have to make your application to the Court of Appeal.
MR WATSON: I am grateful, my Lord.
MR KNOWLES: My Lord, can I please go through the orders which we seek, which are set out on the draft order?
MR JUSTICE OWEN: Yes.
MR KNOWLES: Firstly that the application be dismissed. We seek an order for costs against the claimants and the interested parties to be subject to a detailed assessment if not agreed. Can I say it has always been made clear that Rindberg are meeting the costs.
MR JUSTICE OWEN: Yes, that was clear at the hearing.
MR KNOWLES: We do seek an order against the claimants and Rindberg. For example, if Rindberg were not to honour that undertaking, we have got an order for costs against the claimants. We do not anticipate having to enforce the claimants, but that is the order we do seek.
We also seek a payment on account under CPR 44.38 of £50,000 on account of our costs within 14 days. The quick tot up of costs of the second defendants for the moment is some £65,000-odd. Although we seek a detailed assessment, we would ask for a payment on account, and my Lord has specific power to order that, as I have said, under CPR 44.38.
Fourthly, undertakings. As my Lord will know, the proceedings below were stayed at the suit of the claimants and the interested parties. The usual undertaking in damages was given because, of course, the effect of the stay is to prevent the hearing proceeding, and hence to prevail the premises from opening, which we will argue in due course has caused a loss of profit.
So far as our claim for damages pursuant to those undertakings are concerned, the order I seek is for it to be remitted to a judge for determination. That is likely to be an issue which requires evidence as to what the projected profit would have been. That is the order we seek.
Finally, as my Lord will remember, the stay was imposed when permission was granted and so we seek stay of discharge.
MR JUSTICE OWEN: Yes, Mr Watson?
THE CLAIMANT: My Lord, if I could address you in order of the points. We do not have any dispute with the first or the second, subject of course to permission. As to the third, I am afraid that we would submit that £50,000 is not agreed at this particular point. In any event, we would seek an extension of the time from 14 days to 28 days.
MR JUSTICE OWEN: Yes.
MR WATSON: We would submit if it is requested that part of that were paid up front, as it were, that would be acceptable. However to seek, as I understood it, for the entire amount to be paid up front and then subject to agreement -- I may have misunderstood. I would still submit that is really at the top end. Our own assessment, and I do not have detailed instructions on this, were more in the region of £20,000.
In those circumstances, I would seek for the amount to be reduced down to £20,000, subject to a detailed assessment with an extension by simply another 14 days to 28 days.
With regard to the fourth matter, I entirely agree that it seems most appropriate for this to be remitted to a judge for determination.
MR JUSTICE OWEN: And the fifth follows on from that.
MR WATSON: Indeed. Subject, of course, to an application for permission to appeal.
MR JUSTICE OWEN: Yes. Mr Knowles, is there anything you want to say?
MR KNOWLES: My Lord, yes. The summary assessment that we were given by the claimants and the interested parties at the hearing for their costs on that date was £98,000. Our costs at the moment are very substantially less than that. So the figure of £50,000 we seek is payment on account. It is approximately half the costs of the other side, and we say it is a reasonable quantum to order.
MR JUSTICE OWEN: Yes. Mr Knowles, you may have the orders that you seek, save in one respect. In paragraph 3 I am going to order that the claimants and interested parties pay £40,000 on account of costs within 28 days of 31 July, otherwise the order will stand as you have drafted it.
MR WATSON: Can I just seek two points of clarification? One is in terms of the order I did make a submission that the stay of proceedings be discharged, subject to permission for leave to appeal.
MR JUSTICE OWEN: Yes. Mr Knowles, what do you say to that?
MR KNOWLES: We say it is possible to seek a stay pending an appeal, and I will take my Lord to the relevant section if need be. The usual rule is there should be no stay pending an appeal. A successful applicant at the lower court should not be deprived of his remedy, and there are various factors my Lord has to take into account.
We would say because my Lord has refused permission to appeal, it follows that a stay should not be imposed. We say that if my learned friend wishes either a stay of the proceedings or permission to appeal, he has to seek both remedies from the Court of Appeal. My Lord will have it in the White Book.
MR JUSTICE OWEN: I am familiar with the White Book.
Mr Watson, you will have to seek a stay if and when you seek your leave to appeal.
MR WATSON: I am grateful.