QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PLYMOUTH CITY COUNCIL
|HER MAJESTY'S CORONER FOR THE COUNTY OF DEVON
(Plymouth and South West District)
THE SECRETARY OF STATE FOR EDUCATION AND SKILLS
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 William Hoskins (instructed by Withers LLP) appeared on behalf of the Defendant.
Mr James Eadie and Ms Kate Gallafent (instructed by the Treasury Solicitor), appeared on behalf of the Intervener.
Crown Copyright ©
SECTION A: INTRODUCTION
"The inquest would not be an analysis of the whole child protection system. Rather, the investigation looks at the operation of the system in each particular case, focusing on what information was, or should reasonably have been, known by the authorities and what action they took (or could have taken) as a result. The system is judged by its results, i.e. how it operated and whether any changes are required in order to avoid a similar consequence in the future."
"1. Everyone's right to life shall be protected by law "
(a) the statutory child protection agencies, as public authorities, had, or might have, failed to protect Perrin's right to life under Article 2;
(b) a duty was therefore cast upon the state by Article 2 to conduct an investigation into whether any such agency had indeed infringed Perrin's right to life ("the investigative duty"); and
(c) the investigative duty was not discharged by any other investigation which was being conducted, or could have been conducted, into the role played by the child protection agencies in relation to Perrin, with the result that it fell to his court to discharge it.
SECTION B: THE HISTORY
"[The mother] has, in the past two months, faced a test that few of us has ever had to experience. Throughout this time she has maintained a clear focus on [F], [R] and, since his birth, Perrin. She has not resorted to drug use, and has been able to form open and trusting relationships with professionals. Where she has felt it necessary, she has also asserted her position. The challenges she faces, however, will remain and if anything increase. The 'crisis' of [Mr Barlow's] death creates potential for real progress but also for things to overwhelm her. This is especially the case thinking of Perrin, who does not even reach 'full-term' until almost Christmas.
For all the changes, the basic 'neglect' issues remain the same: the concerns are not so much for [F's] and [R's] immediate safety, but for how they will develop in the future. Will the care they are receiving enable them to become confident people, able to relate to, and be accepted by, others?
In order to be able to cope, [the mother] will have to develop skills of organisation and being focussed on tasks just being caring will not be enough
[The mother] will not be able to do this without the right kind of support. This needs to be ongoing, and she needs a certain level of organisation to be able to use it."
Plymouth resolved at the meeting on 15 November 2001 that Perrin should join his sisters on the child protection register as being at risk of neglect. A sixteen-point child protection plan was approved for the three children: it provided for weekly visits to the family on the part of a social worker, Ms Capron, who was to be allocated to the case in lieu of Mr Pitcher; for weekly visits by a family support worker; for attendance on the part of both girls at nursery school for five full days each week; for weekly visits on the part of Ms John, in particular to weigh Perrin and to monitor his progress; and for the continuation of the mother's psychotherapy. It was also resolved that, were there to be any significant concerns about the development of Perrin, an urgent 'legal' case conference would be convened, i.e. a conference designed to consider with legal assistance whether proceedings for his protection, and/or for that of the girls, should be instituted.
"Perrin's mother is only 156 cms tall (ninth centile) and weighs 61.2 kilograms. I understand that his father was of approximately the same height and build. It is therefore very probable that genetic factors contribute to Perrin's small size. Assuming the parental height to be correct, I have calculated that Perrin's length would be expected to run approximately along the second centile but with a range extending from well below the 0.4 centile to the 25th centile. His present length is just below the 0.4 centile, which is concordant with the small size of his parents and is consistent with his weight and head size. He is therefore symmetrically small rather than being underweight for his size."
Dr Ward therefore expressed the view that Perrin's size might have been restricted by unalterable genetic factors and that his disappointing growth since birth may have represented 'catch-down', i.e. movement from his birth centiles, which were determined by maternal factors, to genetically determined centiles. Although a nurse had orally told Plymouth's team leader that the hospital did not believe that Perrin should be returned to the mother's care, Dr Ward made no such recommendation in his report. He did, however, advise, that, should he fail to gain weight in the care of the mother, it would be appropriate to transfer responsibility for feeding Perrin to a suitable third party, probably a foster carer rather than hospital staff, in order to compare his rate of growth in the care of the mother with that in the care of a third party who was adopting the same feeding regime.
"It's now very difficult to understand the current situation because, if there is no drug misuse, why is the situation so disorganised? There has been a lot of effort by professionals to support the family, especially recently, and since Perrin was born in October, either [the mother] is not at home or she has not answered the door and appointments have been missed or lost. [The family support worker] has been a help to [the mother] in the past but their relationship has broken down, and [the mother] has a difficult relationship with [Ms John].
At times [F] and [R] seem fine and relaxed but have also been described as sad and watchful. There are times when they do not get to school and nursery on time; this is an important time for them, where they need to make friends and be a part of the group and learn. There have also been times where nobody has arrived at school and nursery to collect them at the end of the day.
Perrin is a premature baby, small and vulnerable, and there are worries about his poor weight gain and whether he has seen [Ms John] often enough because he needs to be checked regularly for growth. When [Ms John] has said that Perrin needs to go to hospital, [the mother] has not wanted to go there.
Professionals know that [the mother] loves her children and are clear that she has warmth and affection for them but, at the first meeting, the same issues were discussed as they have been today there is a lot of work involved in looking after 3 small children without their father although [Mr McAndrew] is present at times to help her."
"It is the Local Authority's wish that these children should remain in the care of their mother. However, at this point there remain serious concerns about a lack of co-operation and access to the children, attendance at school and Perrin's weight. Our view is that these issues need to be urgently resolved and that many previous attempts to help the family have not led to sustained and consistent improvement."
It was agreed that Perrin would be discharged from hospital to the mother's care but that he should be kept under medical review as well as under the weekly review of Ms John. It was resolved that another conference should take place on 27 May and the following warning was recorded:
"Given the longstanding nature of the concerns about this family, the social worker will also begin to identify any extended family members who might care for the children should this plan prove unsuccessful, as well as exploring other placement options."
Accordingly on 11 April 2002 Perrin was discharged from hospital and returned home. During his 18 days in hospital he had apparently gained only 0.56kgs. (just over 1lb).
"In assessing the cause of Perrin's poor growth prior to his fatal illness, it is clear that, even when in hospital and when being given adequate (or more than adequate) nutritional intake, Perrin's growth was relatively slow. As noted by Dr Ward, it is highly likely that Perrin was a child for whom the normal growth line would have been below the 0.4th centile. This would certainly be compatible with the growth pattern observed and, in particular, would fit with Perrin's overall small size (i.e. a small head size and relatively short length). Thus, although his growth was a continuing cause of anxiety, and his parents were unreliable in attending arranged appointments, I do not believe that there is any good evidence of significant malnutrition as a consequence of inappropriate, or inadequate, parental care over the period from Perrin's discharge from hospital in April until his death in July
In summary, I feel that this little boy died of bronchopneumonia and circulatory collapse as a consequence of severe dehydration from diarrhoea and vomiting in the 48 hours prior to his death. His parents clearly failed to recognise the severity of his illness and took no action, despite the fact that other parents seeing him only briefly during the course of that day had expressed great concern about the severity of his illness.
From the description given, it would seem highly likely that, had medical attention been sought at midday on 16 July (approximately 10 hours before his final collapse), the dehydration could have been treated and his collapse and death prevented. The lack of action by Perrin's mother and her partner during this final 10 hours of Perrin's life thus, clearly, contributed to the fatal outcome of his illness."
"I should however say that the material now disclosed by [Plymouth] in relation to their participation in the Part 8 review appears comprehensively to define the issues relevant to the local authority's conduct, and it indicates to me how thorough the Part 8 review is likely to be."
The judge also accepted that the guardian's report was not direct evidence but merely a commentary upon the primary evidence relating to the treatment of the family by Plymouth and others and he observed that it might well be that the coroner's access to the guardian's report brought no fresh material to light.
SECTION C: TRIGGER FOR THE DUTY TO INVESTIGATE THE ROLE PLAYED BY THE CHILD PROTECTION AGENCIES
(a) A negative duty, namely a duty not by its agents intentionally to take a person's life save in the circumstances specified in the article. The facts in McCann v UK (1995) 21 EHRR 97, namely the fatal shooting by soldiers of suspected terrorists in Gibraltar, therefore gave rise to a breach of this duty in that none of the specified circumstances existed.
(b) A positive duty, namely to take all reasonable steps to protect a person's right to life under the article. In some situations this duty ("the protective duty") requires the state to do more than effectively to operate a criminal justice system designed to deter the taking of life. One example is that the state is required to take all reasonable care to protect the life of a person involuntarily in its custody: per Lord Bingham of Cornhill in R (Amin) SS Home Dept  1 AC 653 at . Another example is that the state is required to seek to protect a person from death as a result of incompetent medical treatment or care by its effective operation of a system of professional and other regulation: Calvelli v Italy, ECHR, 17 January 2002, 32967/96 at .
(c) A second positive duty, collateral to the first, namely the investigative duty. Article 2 requires the state to furnish an appropriate investigation into the cause of a death which has been, or may have been, caused or contributed to whether by a violation of such domestic laws, criminal and civil, as protect the right to life or by a breach of the state's protective duty under Article 2: see Edwards v UK (2002) 35 EHRR 487 at . In R (Khan) v SS Health  1 WLR 971 at [67(3)] the Court of Appeal observed:"The procedural obligation introduced by article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public."
"115. It is accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person , it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk."
The court held at  and  that the evidence failed to satisfy the above test in that, notwithstanding their concerns about the teacher's intentions towards the family, the police did not know and it could not be said that they ought to have known that their lives were at real and immediate risk.
"Of one thing we are quite clear. The degree of risk described as "real and immediate" in Osman v United Kingdom , as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was "a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party" which was, or ought to have been, known to the authorities ... Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context."
The court found at  that the soldiers had good cause for fearing for their safety in Londonderry; and it held as a result of a balance of all the circumstances that the tribunal's direction infringed the state's protective duty towards them.
(a) the housing authority and the police knew that Mr Reid was extremely violent;
(b) the police arrested him for attempting to slash the face of the applicant father;
(c) the magistrates convicted him of using threatening words and behaviour towards the deceased and the father;
(d) he told the housing authority that, if he was evicted from his home, he would kill the father;
(e) later he told the authority that he would resolve his problems with the deceased by himself;
(f) the police recorded that he had the potential to kill;
(g) the police and the authority were aware of his threat to get even with anyone who gave evidence against him in the possession proceedings brought against him by the authority;
(h) the deceased signed a witness statement on behalf of the authority in those proceedings;
(i) on the day of the killing the authority allegedly told the deceased to be on his guard;
(j) that evening the deceased's father made a complaint to the police, who investigated it and verified that Mr Reid had been outside the family home; and
(k) later that evening Mr Reid stabbed the deceased to death in the street.
"The Court acknowledges the difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life. The present case however leaves no doubt as to the failure of the system to protect these child applicants from serious, long-term neglect and abuse."
"The test under Article 3 does not require it to be shown that "but for" the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State."
But in my view the comment does little more than to restate in different words the proposition articulated in Osman at  that, where the duty is triggered by the knowledge apt to the relevant article, the authorities will be in breach of it if they have failed to take measures "which, judged reasonably, might have been expected to avoid that risk".
"A breach will be found if it is established that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge."
I now have to consider, however, whether he correctly applied the law to the facts when he came to make his first determination.
SECTION D: IS THE TRIGGER ACTIVATED?
(a) section 17 of the Act of 1989;
(b) paragraph 7(a)(i) of schedule 2 to the Act;
(c) Article 8 of the Convention of 1950, as interpreted by the European Court, for example in P, C and S v UK  2 FLR 631 at ; and
(d) Re C and B (Care Order: Future Harm)  1 FLR 611 at , per Hale L.J. (as she then was).
See also, although it does not have the force of law, Article 9 of the U.N. Convention on the Rights of the Child 1989.
(a) a health visitor managed to see him on 27 occasions;
(b) Ms Sobey of CIT made, within the compass of 50 days, 47 successful visits to the home, i.e. visits at which she gained admission to it and saw the children; and
(c) Ms Capron and family support workers made, by my calculation, 23 successful such visits.
I cannot presently recollect having heard a case in which support for a family in the community by child protection agencies was as intensive as was that provided for this family.
(a) Plymouth had extensive knowledge of the family;
(b) the mother was a known drug user;
(c) in 1995 she had allowed her first child to swallow Methadone and had been convicted in that regard;
(d) the three children were on the child protection register as being at risk of neglect;
(e) Mr McAndrew was also a drug user and was the subject of unresolved allegations of sexual abuse;
(f) Mr Bateman considered that by February 2002 there were sufficient grounds upon which to apply for an interim care order;
(g) the mother had a poor record in obtaining medical assistance for Perrin and repeatedly missed appointments with medical and other professionals;
(h) there was evidence that she was failing to cope;
(i) the case conference on 10 April 2002 revealed danger signals;
(j) the case conference on 27 May had to be cancelled;
(k) in May three hospital appointments referable to Perrin were not kept; and
(l) Perrin was not seen by a health visitor after 25 June although visits were supposed to take place weekly.
"On balance I prefer and accept the submissions made to me by Mr McFarlane. I do not think it is reasonable or appropriate simply to view the last 48 hours in isolation without considering the historical background and factual context in this case. It is clearly multi factorial. At this stage I cannot see how I could possibly come to the conclusion that there could be no arguable breach of Article 2. At the Inquest examination of witnesses will bring out more evidence and detail. This may well be a case whereby the State agencies should have intervened long before Perrin's death or at any rate had the information on which that decision could have been considered. He was always vulnerable and at risk. The removal of Perrin from the home or at least applying for a Care Order earlier and involving a guardian may have saved his life. At any rate, earlier action may have concentrated everyone's mind and, for example, ensured that if there were any further missed appointments immediate action would have been taken. Support for this view can be found in Mr Bateman's observations in the [Plymouth] chronology. I believe it is too simplistic to attribute the entire responsibility for the death simply to [the mother] and [Mr McAndrew] in isolation. In my view I am in a similar position to that which Lord Justice Rose found himself in Hurst."
(a) The mother had cared for F and R throughout their lives, i.e. for five and four years, and, notwithstanding frequent concerns about the quality of her care of them, there was no suggestion that their lives were ever at risk.
(b) There was constant concern about Perrin's poor weight gain. But there was nothing to lead Plymouth (or the health visitors) to interpret it as putting his life at real and immediate risk; and indeed it was not the cause of his death. In this regard it is relevant that:(i) Perrin was congenitally small;(ii) R's weight had increased from the same very low level during the first year of her life to a satisfactory level thereafter;(iii) even in hospital Perrin's weight had made only a modest gain and it was Dr Ward's opinion that it would be only in the absence of further modest weight gain following his discharge that it might be better for Perrin to be taken into foster care;(iv) on her last visit a week prior to his death Ms Capron noted that Perrin was eating very well and was smiling and responsive; and(v) Professor Fleming found no evidence of significant malnutrition caused by inadequate parental care between April and July 2002.
(c) Apart from in relation to his weight, there was no history which gave rise to significant alarm about Perrin's health or safety, let alone in terms of a threat to his life.
(d) Perrin died because of events which occurred during only the two final days of his life, when he suffered severe dehydration, was not presented for medical treatment and so was unable to repel the lethal effect of bronchopneumonia.
(e) Although the mother had a history of wilful reluctance to present a child for medical treatment when she thought that the child was insufficiently unwell to warrant doing so, there was in the history no basis for fearing that she and Mr McAndrew would each fail to do so if a child showed obvious signs of being seriously unwell.
SECTION E: HAD THE INVESTIGATIVE DUTY ARISEN, WOULD THE CORONER'S COURT BE THE MEANS OF ITS DISCHARGE?
(b) For example a death in custody is at the serious end of the spectrum: see Amin at .
(c) Whatever its form, the investigation must meet minimum standards: see Amin at  and . Thus the investigation must be:(i) independent;(ii) effective;(iii) reasonably prompt;(iv) open to a sufficient element of public scrutiny; and(v) open to appropriate participation by the next of kin.
(d) In the absence of criminal proceedings or a public enquiry a coroner's inquest is the means by which the state ordinarily discharges the duty: see Middleton at .
(e) Criminal proceedings are unlikely to be the means of its discharge if the defendant pleads guilty: see Middleton at .
(f) Different enquiries can be taken in combination as being the means of discharge: see Amin at .
Friday, 27th May 2005
MR JUSTICE WILSON: The judgment that I give on this application is the judgment which I have written and signed and which my clerk has disseminated. I was extremely grateful to Mr Hough for writing to me and pointing out a typographical error, which of course has been corrected, and suggesting that somewhere in the judgment I should aver to the need for the precise terms of the order to be considered. So, if counsel would be kind enough to go to the end of paragraph 86 they will see a very anodyne sentence namely, "Accordingly I propose to quash his decision in terms upon which I invite counsel to make submissions."
So, Mr Hough, you are appearing for the coroner this afternoon?
MR HOUGH: My Lord, I am. The parties have had time outside court to discuss a suggested order and we have the temerity to suggest an order in these terms to your Lordship. The order is in two parts; first a declaration and then a quashing order. A declaration that on the available evidence the investigative duty under Article 2 ECHR is not engaged, and a consequential quashing order that the coroner's ruling that on the available evidence the investigative duty under Article 2 ECHR is engaged and is hereby quashed.
MR JUSTICE WILSON: "... is engaged and that his court should be the means of its discharge"? That was his ruling, after all.
MR HOUGH: My Lord, yes. May I just explain what the two concerns are that the coroner wants to meet by this order before any further discussion is noted.
MR JUSTICE WILSON: Certainly.
MR HOUGH: The first concern is that the order is so worded that he is able to call evidence as to the historical background, because obviously it would be meaningless to a jury to enquire into two days without any historical background at all. The second concern is that it is not so worded that he is precluded from re-examining this question in the unlikely event that new evidence comes to light, because obviously that would be fettering his discretion unreasonably. So that is why the order has been put in those terms. Subject to those two concerns, the coroner is happy to have the order amended as your Lordship has just suggested.
MR JUSTICE WILSON: So can you run your second order past me again?
MR HOUGH: My Lord, yes. "The coroner's ruling that on the available evidence the investigative duty under Article 2 ECHR is engaged, is hereby quashed."
MR JUSTICE WILSON: I was suggesting: "is engaged and that it was" --
MR HOUGH: -- "and that his court was the means of its discharge."
MR JUSTICE WILSON: "And that his court was the means of its discharge" -- "and that accordingly his court was the means of its discharge, is hereby quashed." Would you be content with that Mr Hough?
MR HOUGH: My Lord, I would.
MR JUSTICE WILSON: Miss Ellis?
MISS ELLIS: My Lord, I have no further observations or submissions to make on the terms of the order. As my learned friend pointed out, we had agreed and discussed that outside of court.
MR JUSTICE WILSON: Good. Shall I turn to Miss Brooks? I have the name of the advocate for the Department down.
MISS ELLIS: My Lord, this is the lady who sits behind me.
MR JUSTICE WILSON: I see. She is not expecting to say anything?
MISS ELLIS: No. She has come as an interested party, my Lord.
MR JUSTICE WILSON: I see. I had her down as an advocate.
MISS ELLIS: My Lord, we put her name down so you knew all of the parties present in court.
MR JUSTICE WILSON: Right. I am perfectly happy with that wording which correctly reflects my judgment. Thank you.
Now, Miss Ellis, are there any other matters? I say that because I do not know whether Mr Hough copied his letter to my clerk to you? I hope he did.
MISS ELLIS: No, my Lord, I have not --
MR JUSTICE WILSON: He did not. Mr Hough, I think you should have.
MR HOUGH: My Lord, I have shown the letter to my learned friend and I have informed my learned friend of its terms.
MR JUSTICE WILSON: Mr Hough has advised me that you are aspiring to have me order the coroner to pay the costs?
MISS ELLIS: Indeed, my Lord, and if I could address you on that?
MR JUSTICE WILSON: Please.
MISS ELLIS: My Lord, it is my primary submission that costs should follow the event. Given that, my Lord, you were in favour of the claimant, finding that the coroner had erred in law, I would respectfully ask you to order that the Coroner's Office do pay our costs of the judicial review, and ancillary thereto, of that hearing. If I could look first and foremost at the background of the hearings that have taken place in these proceedings.
First and foremost we have the hearing on 2nd and 3rd June of last year. At this point, because, as I understand it, and do excuse me -- I am sure my learned friend will correct me if I am wrong, coming new to this case -- it is my understanding that at that point Article 2 was not investigated because the GP in the case was not ready to proceed. So, accordingly, the second limb of the argument was looked into.
MR JUSTICE WILSON: That is an Article 2 related argument.
MISS ELLIS: Indeed, and we did assert our stance at that point that we did not feel, and of course still do not, and your Lordship concurs, that Article 2 had ever been invoked or triggered.
Following that hearing in June, the principal solicitor for Plymouth City Council wrote to the coroner and asked him to review the decision that was made on that occasion and gave him an opportunity, therefore, as I said, to review that decision and to come on board with our way of thinking.
That, unfortunately, was not embraced and another hearing followed on 13th July. Following that hearing the coroner gave judgment saying that Article 2 had been engaged. It is noted in your judgment, my Lord, that all the coroner had effectively done is reiterate his judgment from the previous June hearing. His position had stayed the same and ours had stayed --
MR JUSTICE WILSON: I do not follow that last submission, Miss Ellis. He was dealing with what I have called the first determination, even though he dealt with it second.
MISS ELLIS: Yes.
MR JUSTICE WILSON: He did more than to reiterate his June determination. He had to deal with engagement, with which he had not dealt in June.
MISS ELLIS: Above and beyond the engagement point, my Lord, the substance remained the same and his position remained the same. That is the point I am trying to drive home. His position remained the same. Post the July hearing, again the solicitors dealing with this case afford an opportunity for the coroner to review his decision. All of the protocol documents, skeletons, chronology, were sent in advance, together with a letter asking him again to review his decision and they afforded him with 14 days in which to do so. Again, this was unfortunately not embraced and the proceedings pressed on.
The September hearing followed, as did the most recent hearing, of course, with which you were concerned, my Lord, 14th and 15th February this year.
Our position throughout has been that Article 2 was not triggered. We have no option, it is my submission, my Lord, but to fight that point, because in the event that we did not then the coroner would have proceeded with a six week inquest which we say would have been appalling in terms of costs, consequences for the City Council. The coroner's position throughout -- I would envisage that you will be addressed, my Lord, that he was merely seeking guidance and assistance -- I would rebuff that suggestion. My Lord, it is my submission that actually he has actively defended this case.
If we bear in mind all of the documents that have been filed on behalf of the coroner, there have been skeleton arguments resisting our application, there have been bundles of authority, and he has gone above and beyond the role of adopting a neutral stance. He has made himself an active part of the litigation.
If I could refer you, my Lord, to your own decision, and I have marked the previous draft one, I think there are some telling comments made by yourself. It starts about circa paragraph 77 and 78 where, my Lord, you conclude that Mr Storey, who then appeared for Plymouth City Council, was correct in the submissions he made.
MR JUSTICE WILSON: I said that those were submissions I would look at even though they went wider than the narrow question which I thought was the only question directly raised.
MISS ELLIS: To concern ourselves with. Looking at paragraph 82, my Lord, I think is the telling part where you say that the coroner lost sight of the test which he had resolved to apply. In 86, my Lord, you go on to say that he erred in law. Referencing those points to the judgment of Davies v Birmingham Deputy Coroner -- I hope a copy was passed up by my learned friend, he did pass a copy to me just outside of court --
MR JUSTICE WILSON: Yes.
MISS ELLIS: At a glance, my Lord, I would say that even from the summary of that case it says that a no order for costs may usually be the more usual order to make. But in the event that our application has been contested and that the coroner makes himself an active part of the litigation, or that he is wrong in law, then those, of course, are discretions you can bear in mind, my Lord, to change from that usual stance if I can put it like that.
I would say, my Lord, and it is my submission, that all of those points are quite telling that he did contest the application and that he certainly did make himself an active part of the litigation.
Moving, finally, on to public policy and also looking at the pot that is responsible for paying all of these costs ultimately --
MR JUSTICE WILSON: Well quite.
MISS ELLIS: It is under the same umbrella, if I can put it like that, and there are several pots thereunder.
My Lord, I say it is extremely important, and if public policy is a point which concerns you, that this case should have been mooted because of the public policy considerations, I would say to that, my Lord, then there are public policy considerations in having our costs paid, because bearing the burden of those costs channels funds away from both instructing counsel and agents to proceed with all these matters at court.
MR JUSTICE WILSON: Let me understand the reality behind this application and the reality behind any order for costs which at the end of this I might make. I thought that the coroner was reimbursed by the local authority in respect of his costs?
MISS ELLIS: My Lord, my understanding of how it works in practice is that each department is allocated a budget. So the legal department having to pay their costs out of their budget will, of course, severely impinge their funds in the following year. The coroner does not have a budget per se, although I understand that is currently under review and there is going to be some reshuffling in the organisation. The local authority meets his reasonable costs. But awarding costs in favour of Plymouth City Council, effectively the legal department therein, that is going to keep intact their budget and enable them to put funds into the areas which they need to channel it.
MR JUSTICE WILSON: So, Miss Ellis, you concede that, were I to make an order for costs against the coroner, the coroner would be indemnified by Plymouth City Council?
MISS ELLIS: But not out of the legal pot.
MR JUSTICE WILSON: No. The coroner would be indemnified by Plymouth City Council.
MISS ELLIS: Yes.
MR JUSTICE WILSON: It is a question of which department --
MISS ELLIS: Indeed.
MR JUSTICE WILSON: -- in Plymouth bears the costs.
MISS ELLIS: Indeed. I would say about those costs, that ours -- although our papers are currently with the cost assessor, my Lord -- are extremely modest in comparison to those of the coroner. We have tried to do somewhat of a calculation of roughly what we anticipate our costs to be in this matter. My Lord, as rough as a benchmark as I can give you, having looked at counsel's fee notes and working with my solicitor who has been on this case for the majority of the time, we would guesstimate, I must stress a guesstimate, of no more than £40,000.
MR JUSTICE WILSON: You are not talking about the hearings in Plymouth, you are talking about the judicial review?
MISS ELLIS: Here, yes.
MR JUSTICE WILSON: Has Mr Hough given you an estimate of the coroner's costs?
MISS ELLIS: No, my Lord, no. Given that the solicitor charges out at no more than £76 an hour, and the coroner had instructed Withers and it is thought that their chargeout rate is some £360 plus pounds an hour, we anticipate theirs being far larger than ours.
MR JUSTICE WILSON: There was no leading counsel, Miss Ellis, on his side.
MISS ELLIS: Not for the judicial review, no.
MR JUSTICE WILSON: That is what we are talking about?
MISS ELLIS: Yes, yes.
MR JUSTICE WILSON: Yes.
MISS ELLIS: My Lord, those are my submissions on costs.
MR JUSTICE WILSON: Thank you, Miss Ellis. Mr Hough?
MR HOUGH: My Lord, in the circumstances this is an extraordinary application and it is firmly resisted. It is an application of importance to coroners in general and for this court in particular. The coroner's submissions are threefold. First of all, no costs order should be made against him because he has attended these proceedings to assist the court from a stance of neutrality which he has always made clear. Second, the coroner has acted reasonably and provided assistance for the court on specialist points of law and his assistance has, in practice, proven valuable. Thirdly, it would be absurd and unfortunate for Plymouth City Council to claim costs against the coroner because of the statutory indemnity to which your Lordship has already referred.
MR JUSTICE WILSON: This is not a section 27A indemnity, I assume, because Plymouth never said in advance that they would indemnify him in respect of these costs. This, I suppose, comes ordinarily under section 27 whereby the coroner, every 4 months, lays an account of his expenditure before the local authority and seeks reimbursement? Am I right?
MISS ELLIS: Yes, my Lord, yes, that is our understanding.
MR JUSTICE WILSON: Mr Hough, you are aware of section 27A inserted into the Act by the Act of 1999?
MR HOUGH: My Lord, I am looking at it at the moment.
MR JUSTICE WILSON: It is subsection (2) that catches the eye. This indemnity that looks so appealing for you in section 27A(1) only applies if and to the extent that the relevant council agrees in advance to indemnify him, and I think I would have heard by now if it had done so.
MR HOUGH: My Lord, there has been extensive correspondence which we would construe as indicating that the council agreed to indemnify him in respect of his reasonable costs. I am content with the concession that there will be an indemnity provided without arguing over on what basis --
MR JUSTICE WILSON: Yes.
MR HOUGH: -- because our construction, of some of the correspondence at least, is that it is such an agreement.
My Lord, dealing, first, with the point of neutrality. The position of coroners as regards costs applications is considered extensively in Davies. It reviewed all the important existing authority. The structure of the judgment was, first of all, to look at the general procedure where an application for costs is made against a tribunal or inferior court which appears before this court. Brooke LJ said at paragraph 22, which is on page 2747:
"Some tribunals exercise a highly specialist jurisdiction, and it often happened that such a tribunal might wish to be represented before the court to explain matters relating to its jurisdiction or procedure or to draw the court's attention to relevant decisions overlooked by the parties without in any away involving itself in the lis or contesting the application that was being made."
Having further reviewed the case law, Brooke LJ at paragraph 27, on the following page, said:
"This survey of the case law reveals that the established practice of the High Court for many years was to make no order for costs against an inferior court or tribunal unless it behaved improperly in a flagrant way or unless it appeared at the hearing as a party to the lis to contest the application being made, or declined unreasonably to sign a draft consent order which might obviate the costs of an unnecessary hearing."
Brooke LJ then surveyed the line of coronial authority and came to the conclusion that a similar approach applied at paragraph 43 on page 2753.
MR JUSTICE WILSON: Yes.
MR HOUGH: His Lordship said, second sentence:
"In my experience it has always been perfectly possible for counsel instructed by a tribunal to take a neutral role in an effort to assist the court on relevant aspects of law and procedure, and the cases in Lord Goddard CJ's and Lord Parker CJ's time made a clear distinction between the situations in which the inferior court or tribunal played an active part in the lis by arguing the correctness of the decision under challenge, and those in which it did not."
Then, finally, at paragraph 47, his Lordship summed up the principles to be applied, and I would invite your Lordship to read the whole of paragraph 47.
MR JUSTICE WILSON: Is he saying that these are the principles which still apply notwithstanding Touche?
MR HOUGH: My Lord, yes, he does say that but he adds, and this is (4) in paragraph 47:
"There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today..."
Those considerations have already been set out. Those are really focused on cases where it is a private litigant without external funding.
MR JUSTICE WILSON: Mr Hough, of course, you have the difficulty of not having been the advocate in February, so you do not quite know the degree of energy or otherwise with which your predecessor pressed his points.
MR HOUGH: My Lord, no, but perhaps, my Lord, I can stress a couple of points before going to the facts of this case.
May I stress that the coroner is entitled to give the court assistance on points of law and the coroner is entitled to explain the reasoning of his decision without departing from his stance of neutrality. That is apparent from the passages that I have read.
Here the first point to emphasise is that in both the permission hearing and in an application before that, the coroner stressed that he would not oppose the grant of permission. Secondly, he made an early witness statement stating that he was neutral as regards the outcome and that he welcomed the guidance of the court on what he regarded as a difficult point.
MR JUSTICE WILSON: Can I look at that?
MR HOUGH: It was the acknowledgment of service. It is a witness statement which follows on from my acknowledgment of service in my bundle.
MR JUSTICE WILSON: Let me try and locate that. (Pause) Yes, I have that now. Do you have it too Mr Hough?
MR HOUGH: Does your Lordship have a witness statement running to six paragraphs?
MR JUSTICE WILSON: No, I do not think I do. He wants leave to file a short affidavit explaining his position, so he did that, did he, Mr Hough?
MR HOUGH: My Lord, what he did was to serve a short grounds document with a skeleton argument. It may be helpful to look at that skeleton argument which I hope your Lordship can lay your hands on.
MR JUSTICE WILSON: "Statement of grounds for defending the claim", is that what you would have me look at?
MR HOUGH: Yes, my Lord, and there is a skeleton argument attached to that.
MR JUSTICE WILSON: "Detailed grounds for defending the claim." Are you happy for me to look at that or is that not quite what you had in mind?
MR HOUGH: My Lord, there is a skeleton argument submitted on behalf of the defendant.
MR JUSTICE WILSON: There definitely was.
MR HOUGH: My Lord, I will have your Lordship look at paragraph 5 of that skeleton argument.
MR JUSTICE WILSON: Mr Hoskins' skeleton argument, right. Yes, neutral so far as permission was concerned.
MR HOUGH: Neutral so far as permission, welcomes the guidance this case will give, purpose is to assist the court by identifying those passages in the authorities which are of particular relevance, and to highlight those passages in the coroner's reasoning which explain the reasons for his decision.
MR JUSTICE WILSON: Can you find a statement that he was neutral overall, Mr Hough?
MR HOUGH: My Lord, the statement for the purpose of the skeleton argument is solely to identify passages in the authorities and to set out the passages from the decision which make it clear that the coroner is maintaining the stance of neutrality.
The supplementary skeleton argument which Mr Hoskins put in similarly simply sought to set out the effect of decisions such as Goodson and did not anywhere argue that the decision was correct and that he was defending the application assertively.
The coroner took the stance of providing assistance on points of law and setting out what his reasoning was, but in the final paragraph of the skeleton argument the coroner does nothing more than to say that in the light of the authorities referred to, the coroner considered it to be his duty to hold an inquest which included evidence relating to the involvement of the Child Protection Agencies. The skeleton argument did not anywhere say that the correctness of that decision was being assertively supported, rather the coroner simply said that he would welcome the assistance of the court.
MR JUSTICE WILSON: I wonder whether you would regard this as too fast a ball, too unfair a question. If I am to survey the degree of activity brought to bear by the coroner in the resistance of this claim, I think it may be fair for me to ask whether you have an application this afternoon, namely for permission to appeal to the Court of Appeal?
MR HOUGH: My Lord, I have instructions not to make that application.
MR JUSTICE WILSON: I see.
MR HOUGH: I have taken careful instructions on that point and we do not seek permission because your Lordship is assisted on what your Lordship recognised was a narrow point on the facts of this case. Your Lordship accepted that the coroner impeccably stated the law, but incorrectly applied that law. The coroner accepts your Lordship's judgment and will conduct his inquest in accordance with that judgment.
MR JUSTICE WILSON: I see.
MR HOUGH: Your Lordship, this is an important point generally for coroners who often need to appear to assist on the law, as Brooke LJ said in Davies at paragraph 43, and also to set out relevant facts and explain their reasoning. A coroner often needs to explain the reasoning behind a ruling, or even what verdicts he left to a jury, because sometimes the decision itself does not make itself clear. In this case it did and the coroner was simply able to say to the court that it spoke for itself. But the coroner did nothing more than to set out what the decision was and also to draw your Lordship's attention to relevant evidence, which Mr Hoskins did in bullet point form.
My Lord, on the second point which we argue, the coroner has acted reasonably in providing assistance to the court. He arrived at what he recognises was a difficult decision after the expert assistance of Mr McFarlane, his counsel. The coroner has provided assistance to the court on specialist points of law, and this is not merely a technical point in this case, because some of Plymouth City Council's submissions advanced in the original skeleton argument were firmly rejected by your Lordship. For example, in the first skeleton argument of Plymouth City Council, paragraph 6, it was argued that an Article 2 investigation is only required where it is possible to remedy a systemic defect. It was then argued that there was no systemic defect in the general care systems.
MR JUSTICE WILSON: I remember that.
MR HOUGH: Your Lordship, at paragraph 65 of the judgment that your Lordship has handed down, implicitly rejected that argument. It was also argued that an Article 2 investigation is not required where there is only an arguable breach of the Article 2 (inaudible) obligation which suggested that something closer to a probable breach of that obligation was required. Your Lordship, at paragraph 66 of the judgment, implicitly rejected that argument.
If the coroner had not been present to assist on these points, the coroner certainly could not have been sure at the outset that these points would have been clarified before the court. So, in addressing these points of law, the coroner was not only being reasonable, but on some important issues he was assisting your Lordship on points where you held against the City Council.
So, my Lord, the assistance provided by the coroner was analogous to that of an amicus for a great part of the submissions that he made, providing your Lordship with assistance on an area of law which is highly specialised and is highly technical and on which there have been a plethora of recent decisions of this court and the Court of Appeal.
The third argument I raise is that on the particular circumstances of this case no purpose will be served by the order. As has already been indicated, Plymouth City Council indemnify the coroner for costs reasonably incurred. The costs in this case plainly were reasonably incurred, and I do not think it is suggested by my learned friend that the coroner acted unreasonably in attending the hearings at all, after all the coroner was invited to attend by order of Silber J of 10th September this year, and at the permission hearing Ouseley J was asked to give an indication that the coroner's attendance and approach were reasonable and he gave that indication.
The effect of the order in these circumstances would be to make Plymouth County Council Central Funds pay Plymouth County Council Social Services budget. My Lord, this would result in probable detailed assessment proceedings and further costs involved in those proceedings. Under both the overriding objective of the CPR, and under commonsense, it would be a gigantically pointless exercise for the resources of this court to be used to assess costs moving within one unincorporated association, one local authority.
My Lord, one wonders, rhetorically, what the chargepayers of Plymouth would think of their money being spent on costs draftsmen arguing over precisely how much should go from one department to the other in the Supreme Court Costs Office.
My Lord, for those reasons the coroner says that this case is one where the court should not make an order as to costs, either under ordinary principles or under the particular facts of this case.
My Lord, the coroner having stated that he adopted a neutral position, it would be unfair to order him to pay any costs unless it is held that that indication he gave was either superseded or was disingenuous. In my submission it was not. The coroner performed exactly the exercise which Brooke LJ envisaged. My Lord, there is a real danger, if coroners are made to pay costs in these circumstances, that they will be presented in terrorem by other parties and the coroners will refrain from providing exactly the assistance on points of law which, in my submission, has assisted the court in this case.
MR JUSTICE WILSON: Well, they get an indemnity, Mr Hough, so they should not feel too terrorised.
MR HOUGH: My Lord, they may not feel too terrorised where you have a case with all the funds moving within one body, but the coroners are under increasing pressure as to their budgets and some cases in this court involve very considerable costs run up by both private litigants and by institutions of central government. It would be very unfortunate if coroners felt themselves even somewhat terrorised.
Unless I can assist --
MR JUSTICE WILSON: Yes. Can you run past me again what you said that my colleague Ouseley J had said? I rather got the impression that you were saying that the coroner had procured his blessing for a personified role with an advocate at the hearing.
MR HOUGH: My Lord, my instructions are that the coroner asked that -- there was some dispute at that time about whether the coroner was incurring his costs reasonably as at that moment. Because of his concern that he might face a personal liability, the coroner's advocate asked Ouseley J to indicate whether his attendance to provide the court with assistance was a reasonable incurring of costs. Ouseley J indicated that it was. Those are my instructions.
MR JUSTICE WILSON: Thank you, Mr Hough. Miss Ellis?
MISS ELLIS: My Lord, if I can just mention two points to you, and that is that you did correctly identify in the skeleton you were pointed towards, which is the skeleton argument submitted on behalf of the defendant, where the neutrality was allegedly stated, my Lord -- it is my submission that you correctly identified that that neutrality is in connection solely with permission to apply for judicial review and not the overall scheme of the judicial review.
Secondly, my Lord, if I can assist you any further on the implications and ramifications of the consequences of the monies being moved then I am happy to do so -- if I can assist you any further, because I appreciate it is a complex structure within every local authority and this one is no exception there.
I have taken detailed instructions on this point because at first sight it may seem artificial in a way, and, my Lord, it is my submission that that is not the case.
Just to recap, my Lord, it is my submission that it would severely impinge upon the legal services budget and restrict, certainly, their ability to conduct their role effectively and properly. This case is something out of the ordinary, it is not run of the mill, and it is certainly -- my instructing solicitor has never before been involved in such a hearing.
The local authority do, of course, continue to need to put these cases before the court. The practical reality of that is that they are not either going to be able to do so, or are going to have to do so with far junior counsel where senior counsel would be more appropriate.
In summary, my Lord, I would say that the law was there. We read it and we interpreted it and it was the coroner who erred on the law. Accordingly we say that the costs should follow the event in the normal way, albeit that it is sometimes unusual to do so in the judicial review cases. But I would say the facts are there, as I addressed you previously, my Lord, to depart from the usual stance.
My Lord, those are my submissions, unless I can assist you any further.
MR JUSTICE WILSON: Well, you have assisted me a lot, Miss Ellis, thank you very much.
MR JUSTICE WILSON: Plymouth seeks an order for costs against the coroner. The system of funding for coroners is that they are funded by local authorities. Plymouth funds this coroner's reasonable expenditure. It is unclear whether section 27A of the Coroners Act 1988, inserted into it in 1999, applies. That provides specifically for the local authority to indemnify a coroner in respect of any costs ordered to be paid by him. However, under subsection (2), it is provided that the section only relates to costs in respect of which the relevant council has, in advance, agreed to indemnify him.
Mr Hough, having looked at certain correspondence between the coroner and Plymouth and not wishing me to be burdened by a study of it unnecessarily, says that it is unclear whether section 27A and the indemnity there provided is engaged. Even if not, there is the general right of the coroner to be indemnified in respect of his reasonable expenditure under section 27 of the Act of 1988.
Whether the indemnity comes under section 27A or under section 27, Plymouth concedes that, were it to obtain an order for costs against him, the coroner would be entitled to be indemnified against the costs by Plymouth. What, then, I ask rhetorically, is this application all about?
Miss Ellis has helpfully explained what drives it. It is an attempt to protect the budget of the legal services department of Plymouth. They estimate, very broadly, that the costs of these judicial review proceedings incurred by them are of the order of £40,000. On any view, that is a big burden for the legal department of a local authority.
Were Miss Ellis' application for costs to succeed, the effect would be that it would be another department than the legal department within Plymouth which would have to indemnify the coroner for such as he was obliged to pay to Plymouth and as would in fact be remitted to its legal department. The legal department is so worried about the size of this burden that it is concerned, if it can do so within the law, to have this debt switched to another department within Plymouth.
Miss Ellis starts with the general principle that costs should follow the event. This claim for judicial review has prevailed. Nevertheless Mr Hough, on behalf of the coroner, has had one or two things to say about that. First of all, of course, a large part of the argument raised in the proceedings has related to what I called the second determination; and that was a determination which, albeit commenting upon it, I left to one side. It could not be said that the coroner has lost in respect of that argument.
Equally there is no doubt that, even in respect of the first argument which prevailed, Mr Storey QC and his junior, then appearing for Plymouth, cast their argument too widely and too strongly; and it has been only on a narrower basis than that contended for by Plymouth that this claim has prevailed. Nevertheless, Miss Ellis is right: broadly speaking, it has prevailed.
The leading case on the obligations in respect of costs on the part of coroners who lose in judicial review proceedings is now Regina (Davies) v Birmingham Deputy Coroner  1 WLR 2739. After an extensive analysis of the law, Brooke LJ sums matters up at  in terms of four principles. The third is as follows:
"If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application."
Mr Hough submits that I can properly categorise the coroner's participation in these proceedings as being neutral. Can I properly do so? Perhaps I should guard against too pedantic an enquiry into neutrality. I am sure that I would be expected by the Court of Appeal to look at the matter broadly. What then is the relevant history? I propose for this purpose to chase it back to the period before the judicial review proceedings were launched.
The coroner, as I have found wisely, appointed "Counsel to the Inquest". No less distinguished counsel than Mr McFarlane QC, now a judge of the Family Division, was Leading Counsel to the Inquest. He made clear, as I have stressed in judgment, that his role was to assist the coroner with possible arguments rather than to press the coroner with his own view of the proper outcome.
From that position of assistance Mr McFarlane and his junior clearly mounted a full argument to the effect that in the circumstances of this case Article 2 was engaged. Notwithstanding that there was a mass of argument from different sources, not only Plymouth, against that point of view, Mr McFarlane's argument, put up for the coroner's consideration, found favour with him. In my judgment I have held that, although in his Ruling the coroner impeccably recited the applicable law, he failed, ultimately, to apply the facts appropriately or lawfully to the legal principles which he had articulated.
Then came the proceedings for judicial review. First came the application for permission to apply for judicial review. For that hearing Mr Hoskins, counsel then appearing for the coroner, put before the court a skeleton argument. By paragraph 5 Mr Hoskins explained:
"The Coroner adopts a position of neutrality in relation to the claimant's application for permission to apply for Judicial Review. He welcomes the guidance which this case will give."
Permission was therefore granted on an uncontested basis and the case moved towards substantive hearing.
For that purpose Mr Hoskins, then still representing the coroner, relied upon the skeleton argument that had been put before the court at the permission stage and supplemented it with a skeleton argument referrable to further recent authorities.
I well recall the way in which Mr Hoskins presented his case to me at the hearing of this matter on 14 and 15 February. I find difficulty in saying, hand on heart, that he adopted an entirely neutral stance. Nevertheless his stance was consistently low-key, constructive, helpful and unrepetitive; there was no extravagance in any part of his submissions. Without his assistance, and in the light of the facts that the oral submissions of Mr Storey had been unexpectedly brief and that Mr Eadie on behalf of the Secretary of State chose not to make any submissions to me in relation to the facts, I do not think that I could satisfactorily have determined the claim for judicial review.
The facts that my judgment took, I am sorry to say, just over three months to be produced, and that it runs to 94 paragraphs, show the amount of material which it was necessary for me to master in order to determine the case. The contribution of the coroner, by counsel and solicitors, to the proper conclusion of this case was invaluable.
I hope not improperly, I enquired just now of Mr Hough whether following this ruling there would be an application by the coroner for permission to appeal to the Court of Appeal. I thought that, had he in mind to take this matter, if permitted, to the Court of Appeal, that might show a degree of activity on his part which would run counter to Mr Hough's submission that the coroner's conduct fell within the third of Brooke LJ's principles. Mr Hough tells me that the coroner does not consider it appropriate to seek to take this case to the Court of Appeal.
Putting on one side the question as to whether the coroner was precisely neutral or something slightly less than neutral, I am in no doubt that the circumstances of this case displace the general principle that costs should follow the event. I have no hesitation, notwithstanding my concern for the budget of Plymouth's legal department, in saying that there should be no order as to costs as between the claimant and the defendant.
Anything else, Miss Ellis?
MISS ELLIS: My Lord, my instructions are to seek leave to appeal on that point and further that your reasons can be placed within the order.
MR JUSTICE WILSON: Mr Hough?
MR HOUGH: My Lord, obviously we oppose leave to appeal on that point. Your Lordship has exercised a discretion and it would be bizarre if your Lordship considered it arguable that your Lordship had been unreasonable in the exercise of that discretion.
MR JUSTICE WILSON: Anything to come back on Miss Ellis?
MISS ELLIS: No, my Lord.
MR JUSTICE WILSON: I refuse permission to the claimant to appeal against my decision as to costs. Anything else, Miss Ellis?
MISS ELLIS: No, my Lord.
MR JUSTICE WILSON: Mr Hough?
MR HOUGH: No, my Lord.
MR JUSTICE WILSON: Right. Miss Ellis, of course there are a number of bundles for collection by Plymouth, what would the suggested logistics of that be? Would you like us to put the bundles in a corner of this large court for collection by or on behalf of Plymouth, whether later this afternoon or next week or the week after?
MISS ELLIS: If that would not cause too much trouble then, yes, my Lord. I would simply ask one of my clerks to run down for them.
Could I pass you this on behalf of Mr Tim Scott QC who has asked that I put this before you on a completely separate case?
MR JUSTICE WILSON: I see. I will look at that when I have risen.
Thank you very much.