England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		8th December 2005

1. MR JUSTICE MITTING: Section 93 of the Local Government Act 2000 provides:

"(1) The Secretary of State may, with the consent of the Treasury, pay grants to local authorities in England towards expenditure incurred by them in providing, or contributing to the provision of, such welfare services as may be determined by the Secretary of State ...

"(3) The amount of any grants under this section and the manner of their payment are to be such as may be determined by the Secretary of State ...

"(5) Grants under this section may be paid on such terms and conditions as the Secretary of State ... may determine ...

"(8) A local authority must have regard to any guidance for the time being issued by the Secretary of State ... with respect to the administration and application of grants under this section which are paid to them.

"(9) A local authority must comply with any directions for the time being given by the Secretary of State ... with respect to the administration and application of grants under this section which are paid to them.

"(10) Any determination, guidance or directions under this section may make different provision in relation to different local authorities or descriptions of local authorities ...

"(12)... 'welfare services' includes services which provide support, assistance, advice or counselling to individuals with particular needs."

2. The Secretary of State there referred to is the Deputy Prime Minister.
3. The Secretary of State has divided local authorities for the purpose of administering and applying grants under section 93 into "administering authorities" and "excellent authorities", and has provided a different regime for each. He has done so under his power to make different provision with respect to different descriptions of local authorities under section 93(10). Detailed guidance for administering authorities, to which they must have regard under section 93(8) is contained in a 48-page document entitled "Supporting People Grants (England) Guidance 2003".
4. Paragraph 1 states:
5. "The Guidance does not apply to authorities receiving Supporting People grant under the Supporting People Programme Grant for Excellent Authorities (England) Grant Conditions 2003, except in respect of service review (see paragraph 71 below)."
6. Paragraph 71 states:

"71. Those authorities classed as "excellent" in their Comprehensive Performance Assessment are subject to separate Grant Conditions (the Supporting People Programme Grant for Excellent Authorities (England) Grant Conditions 2003). These require them to undertake service reviews in accordance with guidance. These Authorities are expected to ensure that such reviews are rigorous and disciplined, and take into account the nature, level, quality and cost of services. The manner in which this is done is a matter for local arrangements."

7. A grant determination entitled "Supporting People Programme Grant For Excellent Authorities (England) Conditions" for the period 1st April 2004 to 31st March 2005 is, it is common ground, the successor to a similar document for 2003, and is the relevant document applicable to the facts of this case. Paragraph 7 provides:

"Pursuant to section 93(5) and (6), the Secretary of State hereby determines as the conditions imposed on the payment of the Supporting People programme grants for excellent authorities the conditions set out in Annex B."

8. Paragraph 3 of Annex B provides:

"(1) Each local authority, which receives Supporting People programme grant monies, shall ensure that transitional service recipients --

"(a) continue to receive services which are equivalent in their nature, level and quality to those which, on the qualifying date, were paid for (fully or partially) by one of the funds referred to in sub-paragraphs (a) to (c) of the definition of "transitional service recipient" ...

"until the local authority has conducted a review of the service in question in accordance with Supporting People guidance."

9. A "transitional service recipient" is defined in paragraph 4 of the grant determination as a person in receipt of transitional housing benefit, and recipients of elements of income support and job seekers' allowance. "Supporting People Guidance" means:

"Guidance issued by the Secretary of State under section 93 in relation to the Supporting People Programme Grant for Excellent Authorities."

10. It is common ground that, in the case of excellent authorities, this simply refers back to paragraph 71 of the Supporting People Grants (England) Guidance 2003. Thus, the definition of "service review" is entirely circular and, despite the reference in paragraph 71 of the 2003 guidance to Grant Conditions for Excellent Authorities et cetera 2003, is to be found in paragraph 71 and not elsewhere. This is a curious method of providing guidance to the distributors of public funds.
11. Paragraph 71 is largely exhortatory. Reviews are to be "rigorous and disciplined" and should take into account "the nature, level, quality and cost of services". This does no more than state the obvious. It is difficult to see how a local authority could conduct a review which did not take those factors into account, or would be lax and undisciplined. The only sentence capable of containing an operative condition is the last. The manner in which the review is to be done is "a matter for local arrangements". In other words, provided an excellent local authority does not set out to conduct a lax and undisciplined review, which does not take into account unavoidably relevant factors, it can set its own rules and change them as it sees fit.
12. Hampshire County Council did so, first by a document entitled "The Supporting People Review Process", issued in June 2003, which identified five areas for review:

"The five areas that the initial round of SP reviews will cover are: strategic relevance, current and future demand, quality, performance, cost effectiveness."

13. Under "cost effectiveness" it stated:

"The least objective of the areas for review, as all services differ in some way, is in many ways the most important. Two clear outcomes are required from this exercise: is the overall contract price per unit/or per hour is reasonable, and is the SP grant funding being used appropriately, ie [a mistake for "eg"] it is not being used to subsidise other activities."

14. It set out, in outline, a procedure to be followed on page 4:

"Once the above five areas have been considered, one of three outcomes will result. The service has met acceptable standards in all areas and is recommissioned. The service is either not strategically relevant or there is no demand and it is decommissioned. On the information available the service does not meet acceptable standards with regard to quality, performance or cost effectiveness and more information is required (to be obtained by a meeting with the provider, with stakeholders, or with a visit to the service). The last outcome is obviously not a final one and once further work has been undertaken will lead either to the service being recommissioned, either as it is or in a remodelled form, or with an alternative provider, or be decommissioned."

15. The document also provided for a review of the review. The two "cost effectiveness" yardsticks were of some, but limited, utility. Perhaps for that reason Hampshire expanded upon and altered its criteria in a document sent to the claimants and, I have no doubt other service providers, on 3rd December 2003.
16. Under the heading "Overview" it noted that Hampshire had developed "a range of tools" which would be used in assessing cost effectiveness on review. In summary these were:

"The overall cost effectiveness of each service will be assessed by reference to the following criteria: comparison of weekly individual support costs to the south east; regional quartile figures published by the ODPM, the hourly support rate; the support hours per client per week; and the overall service surplus or deficit."

17. The reference to the south east quartile figures published by the ODPM was a reference to statistical information about the cost of various categories of services provided by various categories of service provider. One such category was "generic services", and a subcategory within it "floating services" in the language of the Beveridge era, "domiciliary services" as opposed to "residential services". The upper quartile cost was, in mid 2004, £93.84 per week per client for generic services.
18. Service providers whose costs exceeded this figure were advised in the following terms:

"Where it lies above the upper quartile evidence will be required to demonstrate that all the services funded are eligible, or that this apparent high cost is reasonable in the given circumstances. Acceptable evidence where costs are above the upper quartile could include an assessment similar to the one drawn up for THB purposes [a reference to Transitional Housing Benefit] and a copy of the individual support plan. In all cases the provider will be asked to produce the full explanation to support their claims."

19. Mr Straker QC, who appears for Hampshire, accepts that it is implicit in that statement that Hampshire would consider whether an apparently high cost of service provision was reasonable in the particular circumstances of the individual service provider, and of the services provided by them.
20. The claimants were a company established in 2001 by Mr and Mrs Tapner to provide housing-related support services to individuals in Hampshire. In November 2003, in anticipation of the introduction of the Supporting People scheme in Hampshire, the claimants were required to fill in a 52-page form, SP3. Section B4.1 required the claimants to identify:

a "primary client group," from amongst the list of 21 descriptions.

21. Mrs Tapner ticked all 21, but when it was pointed out to her that she was required to tick only one, opted at the suggestion of Mr Hagger, an officer at Hampshire, to tick the box marked "generic", defined in the form as appropriate when:

"The service has no particular client group but will take all of the groups listed above."

22. She was also required to tick one of a list of the same 21 names, save that "generic" was replaced by "complex needs", the box which in fact she ticked. She maintains, though Hampshire disputes it, that the service provided by the claimants are a "multi-specialist" service provided to a wide spectrum of "client groups" and so does not fit neatly into the confines of the tick box form. The ticking of the "generic" box was to have a seriously adverse consequence for the claimants.
23. From 1st April 2003 the provision of services by the claimants to 26 "users" was governed by a 33-page contract, plain English version, plus annexes, between the claimants and Hampshire and a separate contract for another single user. The contract is, in form and substance, a contract for the supply of services in return for an annual fee paid monthly. The contract sum for 26 users is stated to be £51,802.40, though in fact all agree that it is and always was, for 27 users, £337,532.52. The reason for the difference is unexplained.
24. Clause 2.2 provided "This agreement will end on the last expiry date", defined in clause 1.1 as:

"In relation to each support service the date which is 12 months after the date a Support Services Review in relation to that support service has been carried out as set out in clause 11."

25. "Support services" are defined as those listed in schedule 1 to the contract, in which some 22 "eligible support tasks" are listed. "Support services review" is defined in clause 1.1 as:

"A review of support services carried out by us [Hampshire] in accordance with clause 11."

26. Clauses 11.1 and 11.3 provide:

"1. We will begin a Support Services Review of each of the support services during the three month period starting on the relevant Support Services Review date concerned, as set out in schedule 3."

27. 11.3:

"Each Support Services Review must be carried out in accordance with any guidelines and directions issued by the Deputy Prime Minister under section 93 of the Local Government Act 2000."

28. The Support Services Review date stipulated in schedule 3 was 1st January 2004. Thus, in a case like this, in which all services were to be reviewed in one go, the contract continued until 12 months after the review was carried out. Clause 11.3 required the review to be carried out:

"... in accordance with any guidelines and directives issued by the Deputy Prime Minister under section 93 in other words, statutory guidance..."

29. This was a contractual obligation on Hampshire and a contractual entitlement of the claimants. As already explained, the only statutory guidance issued by the Deputy Prime Minister was paragraph 71 of the 2003 guidance document, which left it to Hampshire to set its own rules. Thus, the claimants were entitled to, and Hampshire were obliged to undertake, a review of its services under the document attached to the letter of the claimants of 3rd December 2003, and the contract would expire 12 months after the review was carried out.
30. A review was carried out in the spring of 2004. To that end, the claimants were required to complete, and did complete, a 38-page document designed to demonstrate that they made up to date assessments of users' needs, protected their health and safety and that of their staff, protected them from abuse, and were committed to the values of diversity, inclusion and equal opportunity.
31. A "desktop" review was carried out by Mr Crouch, another officer of Hampshire. The conclusions were "validated" by visits to the claimants' offices on 5th and 6th April 2004, where two users were interviewed and the their cases discussed with the claimants' staff. The claimants were adjudged to have satisfied all requirements, except cost effectiveness.
32. Mr Crouch's conclusion on that question is set out in paragraph 30 of his witness statement:

"It was clear to me that this service could not be conceived of as being cost effective in the context of the agreed approach to this undertaking with the Hampshire Supporting People programme. In terms of providing generic floating support the service was operating at a weekly cost per service user of well over £250, that is to say nearly three times the figure of the upper quartile for this categorisation of services in the south east region, and incidentally over three times the upper quartile figure in relation to services nationality. When I examined the data charts for the ODPM regional quartiles it became quite clear to me that this service is very likely the single most expensive service of its type in the south east, and more than possibly the most expensive nationally. An annual SP grant budget of £350,000 plus was funding the support of just 27 service users at any one time. In my view the service was not cost effective in the context of the approach to this aspect of the service review that had been agreed by the programmes's commissioning body. I could see no reason why the service should be so expensive, such as the need to employ particularly specialist staff at a higher rate of remuneration."

33. Subsequently, by a letter dated 26th May 2004, Mr Hagger, another officer, notified the claimants of Hampshire's decision to reduce the sum Hampshire were prepared to pay for the services provided by the claimants from £337,532.52 to £129,515.76 from 1st April 2005.
34. This prompted a detailed response from Mrs Tapner, by letter dated 6th May 2004, in which she stated her view that the service supplied by the claimants did not fit neatly into the ODPM statistical framework. She supported her contention with detailed arguments and statistics of her own. She and a colleague made detailed representations to Mr Rush, Mr Hagger and Ms O'Rourke at a meeting on 10th June 2004. Mr Rush summarises her representations in paragraph 12 of his first witness statement.

"At this meeting I recall that Mrs Tapner put forward the argument that Supportways' floating support service should not have been classed as serving a generic client group but as a 'multi-specialist provider'. In support of her argument she referred to the letter she had previously submitted and also outlined the case histories and details of some of the clients with whom they were working."

35. His reaction to her submissions is set out in paragraphs 13 and 14:

"Having worked in the field of supportive housing since 1996 in both central and local government, this was the first time that I had heard anyone attempt to describe their service in this manner. In my opinion, and based on my experience, especially of that working in the supportive housing section of the Housing Corporation, the service Mrs Tapner described was correctly categorised as generic. I was not convinced by her argument that because a number of her clients could individually be described as fitting into more than one client group then that meant that overall the service was not correctly categorised as generic. All my experience to date gained from working with services across the country informed me that the vast majority of supportive housing services catered for users who could fit into more than one client group categorisation. Where a service caters for service users in more than one client group the correct designation of that service is generic.

"14. Supportways claimed at the 10th June meeting that a large percentage of their service users where Social Services category one class (that is, the statutory responsibility of the Social Services Department) and that they would be adversely affected by the reduction in funding identified through the review process. The process we had adopted with other providers was that in these circumstances we would refer the individuals concerned to colleagues within Social Services who would then carry out a care management assessment. Alan Hagger suggested that Supportways let him know who the service users were and this would be done."

36. Mr Hagger's reaction was similar and is set out in paragraph 16 of his witness statement:

"Sarah O'Rourke, Peter Rush and I met with Supportways on 10th June 2004 and invited them to make representations for discretionary funding to be applied in their case. In doing so I outlined some of the circumstances in which we had already agreed to exercise discretion. In my view they gave no reason at all to conclude that they warranted additional funding. There was nothing to suggest that they were anything other than a generic service provider providing housing-related support."

37. He asked Mrs Tapner to supply details of the claimants' clients. In response she supplied detailed but anonymised "client profiles" under cover of a letter to Mr Hagger dated 8th July 2004. An earlier submission said to be sent on 17th June was not, it seems, received. Mr Hagger says of these:

"My opinion was that these revealed that the support being provided was in many cases ineligible for SP funding, as it was not housing-related support. In addition there was in the vast majority of cases no evidence of any Social Services involvement. This letter also claimed that all at the meeting had agreed that Supportways was an extremely viable [mistyped for valuable] service in financial terms ... they are an exceptional multi-specialist service provider. 75 per cent of their service users hold category one status. None of this had been accepted at the meeting by Peter Rush, Sarah O'Rourke or me, and I responded accordingly on 15th July [mistyped for 16th July]."

38. Ms O'Rourke has carried out an analysis of the client profiles, but, it is accepted, only in hindsight and after the decision was made. Neither Mr Crouch, nor Mr Rush, addressed the client profiles specifically, although Mr Rush did note in paragraph 15 of his witness statement:

"It was considered that these revealed that the support they provided was in many cases ineligible for SP funding as it was not housing-related support. In addition there was in the vast majority of cases no evidence of any social services involvement."

39. I treat that as a reference to Mr Hagger's opinion. Mr Crouch says, in paragraph 31 of his witness statement:

"The review process set out by the ODPM allows for a service review to proceed from stage two to stage three, where information gathered at stage two of the review process has not been sufficient to conclude that the service should be recommissioned. As I considered that there was sufficient evidence to support the recommission of the service in line with the guidance, I proceeded to stage four, Outcome of a Service Review."

40. What happened was, as he says in paragraph 16 of his witness statement, Mr Rush on 16th July:

"... signed off the review conducted before Mrs Tapner's submissions were received by Hampshire."

41. The decision was notified to the claimants by Mr Hagger by the letter of the same date. It encloses Mr Crouch's review, which identifies the "evidence" considered by him as:

"Current Supporting People annual contract price for the service, hourly rate of service, ODPM quartile figures relating to the service's generic client group and service provision model."

42. It goes on to comment:

"The cost effectiveness of this service has been tested by two methods: preparing the overall costs per service user in this service against the south eastern region quartile for floating support services for the generic client group, and comparing the cost of an hour of delivered support against the £20 an hour maximum. On applying these criteria this service is not considered to be cost effective, as whilst the cost per hour of service delivered was under £20 an hour, the overall costs per service user were significantly above the relevant upper quartile. On the basis of these assessments this service is not considered to be cost effective at the current contract value and it is recommended that a new contract be issued limited to an amount to be determined by applying the relevant upper quartile and £20 an hour cap."

43. Mr Hagger's letter of 16th July 2004 refers to two additional matters:

"We did not reach a conclusion that the quartile band for Supportways should be changed."

44. And:

"A brief look at the services received by Supportways users raises questions as to whether they can be legitimately classified as housing-related support."

45. Thus, the reasons given in the notification of Hampshire's final decision that the service was not cost effective were: (i) the cost was significantly above the upper quartile per client, identified in the ODPM statistics;~(ii) the quartile band should not "moved", or "changed", both words taken from Mr Hagger's letter; (iii) a "brief" look at the services provided suggested many were not "housing-related support". Neither the letter, nor the witness statements, state in terms or suggest that Hampshire officials considered whether or not, though the services were correctly classified as generic and their cost exceeded the upper quartile, the cost was reasonable in the circumstances; nor did either advert to the description of the services provided in schedule 1 of the contract.
46. Mr Knafler submits that these omissions mean that the review was not carried out in accordance with Hampshire's arrangements. His submission is, at least in part, correct. Those arrangements required more than the categorisation of services and a comparison with the ODPM statistics for the appropriate category. That was the first step required by the arrangements. If, as here, the upper quartile was substantially exceeded, the arrangements required the service provider to supply additional evidence to justify the reasonableness of their costs, and Hampshire to consider them and reach a view on that question. It is a distinct question from the category into which the service fell. Hampshire did not perform this exercise. Consequently they did not fulfil their own arrangements for review.
47. I do not accept Mr Knafler's subsidiary contention that Hampshire were obliged to restrict their analysis to the cost of the services specified in the contract. The arrangements required service providers to demonstrate that the services funded are "eligible"; in other words eligible for grant purposes under the Supporting People scheme. This is, or may be, distinct from the "support services" or "eligible service task", described in the contract. If a service was provided under the contract but was not "eligible", Hampshire were entitled on review to disregard it.
48. The claimants applied for a review of the review in accordance with the local arrangements. This was a review of the procedural propriety of the decision and not its merits. Nothing turns on it, save that the decision of 16th July 2004 was upheld on 10th December 2004 and notified on 17th December.
49. Hampshire originally contended that the contract came to an end on 31st March 2005, but now rightly accept that it continued at least until 15th July 2005; twelve months after the review was completed by Mr Rush and notified to the claimants. The claimants have continued to provide services to users as if the contract had not come to an end, but Hampshire have made no payments in respect of them.
50. What is the consequence in private and public law of those findings on the rights of the claimants and Hampshire? The claimants' case can be distilled into the following propositions. First, the claimants had a contractual and public law right to have a review conducted in accordance with Hampshire's local arrangements. Secondly, because the review did not satisfy those requirements, therefore it should be quashed. Alternatively, thirdly, it had no contractual effect. Fourthly, in either event the contract has not been terminated and Hampshire are liable to pay for all the services in fact provided by the claimants since 16th July 2005.
51. Hampshire's case can be distilled into two propositions. First, the review as conducted was sufficient to trigger the contractual provisions for the termination of the contract. Secondly, the claimants have no public law remedy. Its remedy, if any, is purely contractual.
52. The effect of the flawed review on the contractual rights of the parties depends in the first place on the proper construction of the contract. The starting point is its factual matrix, succinctly summarised in the preamble to its operative terms:

"A. From 1st April 2003 changes will be made to funding for the provision of housing related support services to people who need them (which is generally referred to as 'Supporting People').

"B. So as to minimise the disruption to the support services which you are currently providing, it has been agreed that we will enter into this Agreement with you under which you agree to continue to provide support services to certain people and we will pay you to do so.

"C. Both of us understand that this agreement is therefore an interim arrangement and that as set out in the Agreement, we will carry out a review of the way in which you provide the support services.

"D. Depending on the outcome of that review, we may or may not ask you to continue to provide the support services. If we do, and you agree, we will enter into a new agreement. If we do not enter into a new agreement then this Agreement will terminate, as set out below."

53. Thus the contract can be taken to have been, and regarded by both parties as having been, an interim arrangement which was to govern their contractual rights until it was terminated in accordance with its terms. The relevant terms are set out in clauses 2.2 and 11.1 and 11.3, and are unambiguous. The contract would end twelve months after the conclusion of the review started on 1st January 2004. Unsurprisingly, the contract is silent as to what would happen if the review thus undertaken was not carried out in precise accordance with the contract terms.
54. The task of the Court is to construe the express terms so as to give effect to the presumed intention of the parties and, because this is a business contract, even though one of the parties is a public body, to "construe the contract in a business fashion"; see Chitty on Contracts, volume 1, 28th edition, paragraph 12/055.
55. Can it have been the intention of the parties that, in the event of a flawed review, the contract should continue indefinitely on the same terms as before? My answer is unhesitating: it cannot possibly have been, for a number of reasons which include at least the following. First, Hampshire were administering and distributing money provided at the discretion of central government. The amount of money could be cut at any time upon an effectively unfettered exercise of discretion by the Deputy Prime Minister. This circumstance was known to both parties and neither can have expected Hampshire's right to terminate to depend upon precise compliance with its local arrangements for review.
56. Secondly, if precise compliance was a prerequisite to termination, the duration of the contract would depend upon the exercise of a public law discretion by this court. On an application for judicial review, if the court found the review to be flawed on public law grounds, it could, and Mr Knafler argues should, quash the decision and order it to be taken again. But it is not bound to do so: there is, as all acknowledge, a wide discretion. The duration of a commercial contract would not ordinarily be subject to the exercise of judicial discretion on public law grounds, unless the terms made it unmistakably clear that that was what the parties intended.
57. Thirdly, this is a termination provision. The duration of the contract depends upon the occurrence of an event, the carrying out of a review, not upon its quality. If there had been no review, or a review that was a sham, the termination provision would not have been triggered. But a review undertaken in good faith, in purported performance of a contractual obligation, is the very event which triggers the provision, whether or not the review is flawed. Hampshire undoubtedly carried out a review in good faith which ended on 16th July 2004. The effect is that clause 2.2 was triggered and the contract came to an end on 15th July 2005. What, if any, right to a remedy does that leave the claimants?
58. The claimants had a contractual right to have an unflawed review carried out; see clause 11.3. An unflawed review might have resulted, and might still result, in the offer of more favourable terms for a new contract than those offered on 24th May 2004 and 16th July 2004. Hampshire were in breach of contract in conducting the flawed review. It is common ground that damages would not be an adequate remedy, and there is no obstacle of principle to a decree of specific performance requiring Hampshire to reconduct the review in accordance with its local arrangements.
59. In consequence it does not matter which way the perennial and much debated question whether public law remedies are available to deal with a set of circumstances also governed by a contract is decided. The private and public law remedies are effectively the same.
60. Subject to argument of detail, I propose to order, by whatever means are most convenient, that Hampshire reconduct the review in the light of this judgment with a view to it taking effect as from 16th July 2004. The effect will be that the claimants should be offered what a properly conducted review would have produced to take effect on and after 16th July 2005.
61. MR STRAKER: My Lord, in those circumstances there is plainly a little bit of working out to be done, and I suspect, my Lord, in those circumstances, that as far as the little bit of working out to be done is concerned, that it may be better to provide for a liberty to apply to your Lordship, and that that liberty to apply can then deal with any consequential matters including, if I may respectfully say so, the question of costs in relation to this matter.
62. MR JUSTICE MITTING: Well, as far as the working out of the order is concerned, that is plainly right. You each need time to think about the effects of the judgment and to give effect to it in a way that is, as I have expressed, most convenient. But as far as costs are concerned then, unless there is agreement, that is surely something I can determine now.
63. MR STRAKER: My Lord, yes. My Lord, the reason why I put it in that way, of course, is because I appreciate that, in the course of the discussion, reference was made to specific performance, but we have never formally faced a claim for specific performance, and whilst I readily accept that I said to your Lordship, well, I am not, so to speak, a man for technicalities, we have never actually faced that.
64. Your Lordship's approach is going to be, as I have understood matters, that we are driven back to the particular date, and that what flows thereafter is going not to embrace the relief which was being sought, in fact, namely a continuation of the contract, alternatively a contract on the same basis, but, if anything, a different arrangement and in those circumstances, in my respectful submission, the appropriate order must be for Hampshire to be awarded its costs.
65. MR JUSTICE MITTING: Well, the truth is that this is a curate's egg of a judgment for both sides. The claimants do not have what they ideally wanted, which is for Hampshire to pay them for what they have been doing at the old rates, or at any rate they do not necessarily have that; on the other hand, Hampshire's review, contrary to its case, has been held to be flawed and must be undertaken again.
66. Now, this is therefore, it seems to me, a case in which some apportionment of costs is unavoidable.
67. MR STRAKER: My Lord, that may be so, but, my Lord, the principal point that I would make is as given and, my Lord, it is also right to observe that the way in which matters have developed, and I appreciate your Lordship's observation about the curate's egg, but that curate's egg, if I may respectfully say so, was not one that was apparent as being hatched in the claim form as originally formulated, or even as amended.
68. MR JUSTICE MITTING: Well, subparagraph 3 in paragraph 50 of the claim form, 25, seeks in substance if not in precise language what I have ordered. On the other hand, subparagraph 4 is expressly refuted by my position, hence the curate's egg.
69. MR STRAKER: My Lord, yes. Because it was always that that was being sought and that, of course, founded the money claim, namely: please can we have a continuation of the ...
70. MR JUSTICE MITTING: Yes, but it was always open to Hampshire in the light of the judicial review proceedings and the grounds advanced to say, yes, our review was flawed and we will do it again objectively and honestly, and to come up with whatever the answer might be on re-review and they did not. They sought instead to defend the position from which they started, with the minor adjustment of the date from the end of March to 16th July.
71. MR STRAKER: Well, my Lord, that is undoubtedly correct. My Lord, my learned junior Miss Carrington was involved in the earlier stages, and it may be that she will be able to help your Lordship further in connection with those matters, and I certainly do not mind my learned junior coming to the aid in that respect. It may be that she can help your Lordship in that regard.
72. MR JUSTICE MITTING: Well, there are two possibilities. Either I can decide costs, I cannot obviously assess them, but I can decide how they should be distributed, subject to detailed assessment or agreement, now on the basis of oral submissions, or I can invite you to put in written submissions. I personally would prefer to do it now while matters are still fresh in my mind, rather than have to revisit something that by the time I receive submissions, I would have forgotten all about.
73. MR STRAKER: My Lord, I readily understand. Well, my Lord, that is what I wanted to say a propos costs and, as I say, I do not know whether my learned junior was going to remind your Lordship.
74. MS CARRINGTON: My Lord, I have been involved since a very early stage in the proceedings. If your Lordship is going to adopt the issue by issue basis, the material facts for your Lordship to consider are this: first of all, as my learned leader has said, at the permission stage what was being sought was in fact an order requiring the continuation of the contract materially, and that is point four in the original particulars of claim.
75. MR JUSTICE MITTING: I think when the matter came before me on the renewed oral application, the target of the litigation was somewhat adjusted, was it not?
76. MS CARRINGTON: Then the target of the litigation was adjusted before you on May 2005, which your Lordship has held must in effect fail. That obviously entailed consequential amendments to the acknowledgment of service, and grounds for resistance. There was a hearing for interim relief on 19th August and on 26th August bought by the claimants, both of which failed with costs.
77. MR JUSTICE MITTING: So I am not invited to make any order in respect of those.
78. MR STRAKER: So your Lordship need not consider those. Your Lordship, we have had two days. What the claimants' case has come down to now is not in terms of the client group to whom the services were offered, but a complaint about the conduct of the review on the two grounds identified by your Lordship, one of which has succeeded. Then we have the fact that a new procedural unfairness claim, which did entail quite a lot of evidence from the defendant, has been abandoned. Then, in accordance with Lord Woolf in AI Reduction what, of course, your Lordship has to consider is a costs order that accurately reflects the position of both parties. Your Lordship, those are my submissions.
79. MR JUSTICE MITTING: Thank you very much, that is very helpful, but actually incomplete. I would prefer, if I do not embarrass you, to invite you to put a figure on your submission in percentage terms.
80. MS CARRINGTON: My Lord, I would submit at a minimum in percentage terms, leaving aside the costs orders already made in the defendant's favour, 75 per cent.
81. MR JUSTICE MITTING: You are seeking an order of 75 per cent in favour of the defendants, with no cross-order the other way?
82. MS CARRINGTON: With no cross-orders the other way, and the 75 per cent reflects, as it were, a discount for achieving, as it were --
83. MR JUSTICE MITTING: Well, notionally, it means that you have allowed 12.5 per cent in favour of the claimants which, in the light of the relative success, seems a little ungenerous.
84. MS CARRINGTON: Well, your Lordship, my submissions obviously are to the contrary, with respect. It is a case where one has to focus on the reality of the relief sought and what the claimants have come to this court asking for, and it has been a feature of this case, and it has been the troublesome feature if you like, that they are asking the court to say that the contract continued.
85. MR JUSTICE MITTING: I agree that that has been a major element of their claim, and they have lost on it.
86. MS CARRINGTON: And the way the defendants have always put their case on that particular issue, that is unamended, I will not take your Lordship to it, but they say on relief:

"The contractual position as explained above is that the contract between the claimant and the defendant has now expired and the claimant has declined to enter into the contract. In private law terms this means the claimant has declined the defendant's offer to contract."

87. Your Lordship, that is always the position that the defendant has advanced.
88. MR JUSTICE MITTING: Thank you very much.
89. MS CARRINGTON: And, of course, your Lordship, there is always the possibility -- I should add this -- that the review carried out under whatever guise by the council will produce exactly the same result.
90. MR JUSTICE MITTING: That is a possibility, but it is not a matter that is of concern to me at this stage and in relation to this issue.
91. MS CARRINGTON: Your Lordship.
92. MR JUSTICE MITTING: Mr Knafler?
93. MR KNAFLER: My Lord, I had hoped to rise at an earlier stage and suggest that all issues be deferred to allow the parties to let the dust of the litigation settle and try to think of the sensible way forward generally, but since it is convenient to all parties to deal with the question of costs now, my submissions on that issue are as follows.
94. One can well understand why lawyers are particularly interested in legal issues, such as the precise nature of the remedy sought. However, the substance of this case has been throughout whether or not the local authority completed a review in accordance with its local arrangements, to use shorthand.
95. That is the substance of the claim, it always has been, and the claimants' arguments in that respect have not significantly altered since Mrs Tapner's letter sent to the local authority in May 2004, and on that fundamental aspect of the case she has succeeded.
96. Now, in framing her claim, which is not of course her responsibility but the responsibility of her lawyers, her lawyers have faced a number of difficulties in that the inter-face between public law and private law is a difficult one. I think the claim was initially formulated purely as a judicial review.
97. MR JUSTICE MITTING: Well, there were good reasons for doing that. It is much easier to convert from judicial review (inaudible words) than it is the other way around.
98. MR KNAFLER: I think that is right. But I think initially the view of my distinguished predecessor was that it was basically a judicial review claim and, had the judicial review claim continued to its conclusion, and had your Lordship considered it and decided that it was basically well-founded but that ultimately the right course was not to quash the review decision so as to resuscitate the contract, but to grant the more limited form of relief, which is essentially what your Lordship has done, I am not sure that there could have been any argument in relation to costs at all but that the claimant should have 100 per cent of the costs. In that context it is simply a case of ultimately the final relief being adjusted somewhat down from what was sought.
99. Now the introduction of the claim in contract I think arose at the permission hearing in the context of a general consideration.
100. MR JUSTICE MITTING: Well, it arose in part because Hampshire's case as originally pleaded would have had the contract end on 31st March.
101. MR KNAFLER: Yes, and --
102. MR JUSTICE MITTING: And they conceded that early on, rightly, but you probably had to --
103. MR KNAFLER: I do not think they did concede that early on. I am not aware that it was conceded until it was simply omitted it was conceded -- May, I am so sorry.
104. MR JUSTICE MITTING: Oh, the order that I made recorded an undertaking of the --
105. MR KNAFLER: Oh, yes I have seen that.
106. MR JUSTICE MITTING: To continue until 16th July.
107. MR KNAFLER: I thought that was simply an undertaking to avoid having to pay an interim order. I did not actually read that as being a formal concession of the point. I understood that as leaving --
108. MR JUSTICE MITTING: Well, dealing with realities, the claimants are a small private company, and Hampshire were saying goodbye to the money that they paid up until 16th July.
109. MR KNAFLER: That must be right, yes. Well, however the matter arose --
110. MR JUSTICE MITTING: I was trying a make a point in your favour. You achieved something at an early stage of some value.
111. MR KNAFLER: Yes. I mean the formulation of the claim, in my respectful submission, was simply a reasonable alternative way of putting the legal argument. Now, in my respectful submission, in reality what has happened is that the claimant has won on the substance of the claim. In relation to the legal remedies she sought she has partially lost in terms of contract and partially lost in terms of judicial review. She has won on the substance of her claim, but she has received a form of relief which is significantly more limited than what she had originally sought.
112. MR JUSTICE MITTING: It was always open to the claimant to say, notwithstanding my published case, I accept that I am likely to obtain something less than I am claiming, namely a re-review. Likewise it was open to Hampshire to conduct a re-review in accordance with the contract, and you would say its public law duties. Neither side have done that.
113. MR KNAFLER: No, neither side have taken -- well, it has just proceeded to a trial and now one is forced to make costs submissions on the issue.
114. What I say about it is that the claimant has succeeded on the substance of the case. She has not succeeded in full in relation to the relief she sought. She could have offered to seek a lesser kind of relief, or the local authority could have offered to cut through matters to conduct a further review and, had she then stood her ground and refused to participate in that process, then no doubt she could be significantly criticised.
115. A party that succeeds in relation to the substance of the claim, but does not get all the relief that it seeks, should, in my respectful submission, be receiving about 75 per cent of their costs.
116. MR JUSTICE MITTING: So you concede by necessary implication 12.5 per cent the other way.
117. MR KNAFLER: Well --
118. MR JUSTICE MITTING: I think when one is doing it issue by issue, you have to, do you not, subject to the considerations which do not rise in this case, say, well, the claimant is entitled to his costs on this issue, that is a third worth of the litigation; the defendant is entitled to their costs on these other two issues, two thirds of the costs of the litigation; you offset the two and you come out with one third in favour of the defendants. That is not to be taken as an indication on the way my mind is working on the facts of this particular case, but that is in principle how you do it.
119. MR KNAFLER: Well, the procedural unfairness issue in relation to the review was withdrawn really simply on the basis not that it was wrongly formulated, or not likely to succeed --
120. MR JUSTICE MITTING: Well, I have not expressed any view about that in the judgment, but it was withdrawn in circumstances in which you were facing up to the obvious, I think. You rightly conceded that it added nothing to it.
121. MR KNAFLER: Ultimately our view was that the court's time would be far better spent looking at the substance of the claim. In terms of the issue, I mean there really was only one substantial issue in the case, however one put it. One could put it in terms of making a hash of the cost effectiveness issue, or in terms of making a hash of the state of the investigation, or in terms of not conducting the review in accordance with the local arrangements.
122. MR JUSTICE MITTING: Well, that is what the case was about.
123. MR KNAFLER: Yes, that was the only substantive issue.
124. MR JUSTICE MITTING: Granted, but without question the defendants have incurred the expense in their witness statements and their legal advisers, and no doubt looking through the meetings of the relevant committee to deal with the procedural unfairness allegation, and you failed on that by withdrawal. You have not succeeded in the relief that in economic terms is likely to have been the most beneficial, namely continuance of the contract unaltered, but you have succeeded on what, on any view, is a critical issue in the case: the effectiveness of the fairness of the review.
125. MR KNAFLER: And the relief granted by your Lordship, whilst it is not the relief sought, is significantly better than simply a quashing of the review. The Supportways do now have a reasonable expectation of having some form of contract for at least £130,000 a year from 16th July, so they have obtained some relief in the sense that your Lordship has indicated that the results of any review should be retrospective at least. So it is probably fair to say that your Lordship has come some way towards meeting the claimant's concerns.
126. MR JUSTICE MITTING: It would greatly assist me if I could have your submissions on the breakdown of the various issues: how much has been spent on these various issues? You will then have to leave it to my judgment as to the extent to which anyone of them succeeded. Procedural unfairness looks to me to be about 10 per cent of the costs of the case, is that fair?
127. MR KNAFLER: Yes.
128. MR JUSTICE MITTING: The contract continuation in terms of outcome is immensely important, but in terms of time spent on argument probably no more than 10 per cent itself.
129. MR KNAFLER: Well, if that, but at most, yes.
130. MR JUSTICE MITTING: But these things are not just on a time basis, they are also on an importance basis, are they not, which must be considered.
131. Then we have the concession by the council of the date, that is trivial. You had to bring the proceedings, of some importance, 5 per cent.
132. Then we have what is left, which is the argument about the review and its effect. That is what this case has, in the main, been about. There has been a lot of surrounding issues about whether it is a public law or private law question which utterly I have decided as not really there.
133. MR KNAFLER: Yes, well, I mean it was pleaded in the alternative by my predecessor, and your Lordship has indicated that it is neither here nor there. That may come out at almost 75 per cent in favour of the claimant.
134. MR JUSTICE MITTING: I suppose -- it is not quite looking like that. It is certainly the major element of the argument and the paperwork generated and the costs of preparing the case, say 50 per cent, but there has been an awful lot of peripheral activity which is not specifically attributable to anything. For example, the debate about whether it is private or public law. That will undoubtedly have caused a lot of legal effort to have gone into this and it has taken a certain amount of time in the litigation.
135. MR KNAFLER: I would respectfully question that. Obviously legal effort has gone into it, but this is not an issue -- and I am not being critical of my learned friends, but it was not an issue that was developed in any detail in their defence or in their skeleton. I am not suggesting it should have been, and I am not making any criticism at all, but if one looks at the defence and the skeleton the point is made, and it is made fairly I accept that, but it is not elaborated on in any detail and, again this is a submission made with the greatest of respect, they come and they make a perfectly good point, but they make it with one case and one piece of textbook.
136. There is nothing wrong with that. It is an excellent way to approach the case, and a concise way of approaching the case, and there may have been a lot of thought that went into it in the background. But on the face of it they saw a good point and they dealt with it in a very concise and expeditious manner, if I can put it like that.
137. So all in all, and if one steps back broadly, we have won on the guts of the case, but also on the technical arrangements, 75 per cent for the claimants looks about right. Unless I can assist further, my Lord.
138. MR JUSTICE MITTING: No, that is very helpful, thank you very much.
139. MR STRAKER: My Lord, may I respond on that, because -- can I adopt if I may your comment that one should come to brass tacks, and I would like to come to brass tacks, if I may.
140. First of all this claim was launched as a public law claim and my learned friend's clients took the risk of bringing a public law claim against Hampshire and, as far as a public law claim is concerned, they have entirely failed.
141. Secondly, in connection with the contractual claim, the position is one whereby the contractual claim was put upon a basis that the contract should be regarded as continuing and that the pecuniary claim should be in relation to the rate which had previously been sought, and that exercise has completely failed.
142. Thirdly, their position is one whereby, in consequence of all those matters, and in consequence of the way in which the claimant was conducting the case, matters were required whereby Hampshire had to secure, and did secure, statements from eight of their officers whom they arranged to attend before your Lordship to be told, either late on the evening before, or on the morning of, that those witnesses were not going to be cross-examined. So as far as when one gets down to brass tacks, my Lord, the position is, in my respectful submission, that is was on a basis entirely different from that launched and entirely different in fact from the way in which the matter has been pleaded in contract, when Hampshire have been successful on the bulk of the issues, we now have the consideration a propos costs.
143. Moreover, in circumstances where my learned friend stands up and says, well, we may now have a reasonable expectation of being offered a contract on a figure somewhere in the region of £120,000 or thereabouts, when if your Lordship looks at the pleadings, the first pleaded response made by Hampshire was: can you please let us know whether you want such a contract. So we have now reached that particular stage, having been through this whole exercise, and therefore, in my respectful submission on behalf of Hampshire, I can say that brass tacks lead to the conclusion which Miss Carrington very carefully indicated in the case to which she referred: that on a point by point basis we should be entitled to, with THE greatest respect, the bulk of our costs.
144. MR JUSTICE MITTING: Thank you.
145. MR KNAFLER: My Lord, I wonder if I might just address two very short points in relation to THAT. The witnesses in relation to the procedural unfairness being asked to come on the first day of trial, there were discussions between the parties leading up to trial about whether witnesses were to be called. We were not sure about what to do. It is absolutely true that I only indicated to my learned friends on the evening of trial that I did not think we would need to have any oral evidence. As everybody knows, with a case like this, the claimant starts and is bound to take the whole of the first day on opening and with their statements.
146. Secondly, what I actually said in relation to the forthcoming service review was that the claimant company had a reasonable expectation of having a backdated contract of at least £130,000. Naturally, given the strength of their evidence in relation to the actual needs of service users and possibility of involvement of stakeholders and other agencies they obviously hope that it would be significantly higher. So I just put it in the lowest possible way.
147. MR JUSTICE MITTING: Well, I cannot possibly look that far forwards.
148. MR KNAFLER: No, of course not.
149. MR JUSTICE MITTING: It is simply impossible for me to judge. Right, thank you.
150. I now turn the question of costs. As always in a multi-issue case, where one party has succeeded on some issues and another on others, the question is far from straightforward. I identify four specific issues upon which it is possible to say that one or other party has succeeded. In a very rough and ready way, I ascribe to the percentages, based in part upon the time and legal effort that was required to litigate them, and in part upon the importance in the context of the case. I can explain my reasons no more precisely than that and, indeed, I suspect that no more precise breakdown is possible than that.
151. The first issue is procedural unfairness. The claimant has lost on that issue and rightly conceded it at the start of the proceedings as not relevant. In my view, that accounts in terms of importance and time spent to ten per cent of the value of this case.
152. The second issue is the effective continuation of the contract on its old terms. The claimant has lost on that issue. In terms of importance to the parties, monetary importance, it is of the highest. In terms of the time spent to litigate, it is not particularly great. Reflecting, and giving greatest weight to its importance as an issue, I ascribe 20 per cent of the costs of the litigation to that issue.
153. The third issue is the extension of the contract originally claimed by Hampshire from 31st March 2005 to the date which they now accept, rightly: 16th July 2005. This accounts for but a small amount of the total legal effort involved but is an issue of some monetary importance and required litigation to resolve it. I ascribe five per cent of the costs of the litigation to that item.
154. As far as the major issue of case is concerned, the effectiveness and outcome of the review, in terms of legal effort, time and cost, that is far and away the largest item. In terms of importance in the case, monetary importance, the outcome will only be known as and when Hampshire conduct a proper review. It is a result that has never been offered by Hampshire and could not have been achieved except by litigation. I ascribe 40 per cent of the total costs to that issue.
155. As far as the remainder is concerned, debates about the relevance of public or private law and all other peripheral issues, I ascribe 25 per cent to them and reach no view about whether one party or another would be likely to succeed on them, had I thought it necessary to determine them. But I do not.
156. Accordingly, on that analysis, the defendants have won on 30 per cent out of 75 per cent of the issues, and the claimants on 45 per cent out of 75 per cent, with the balance neutral. Reduced to simple terms, and factoring back in the 25 per cent neutral, that means the claimants have won on 60 per cent and the defendants on 40 per cent. The order I make, subject to a set-off, which I would encourage, is that the defendants will pay the claimants 60 per cent of their costs and the claimants will pay the defendants 40 per cent of their costs, each to be the subject of detailed assessment if not agreed, and that order does not in any way disturb the interim orders made in the course of the proceedings.
157. MR STRAKER: My Lord, may I just mention one or two matters arising. First, as far as the money presently in court by way of security, can I suggest that that remains in court to be paid out when the costs assessments have occurred. Either that or to be paid to the defendants.
158. MR JUSTICE MITTING: Well, I do not think that can be right, can it? There ought to be a set-off and, subject to agreement on the maths, which at this late stage in the afternoon I would not undertake without assistance, it is simply a matter of arithmetic and it will result in a net sum in favour of the claimants. So there cannot be any reason for maintaining their security in court.
159. MR STRAKER: My Lord, as long as the matter is dealt with, that is all I am concerned about for the moment. I am happy to proceed in that way.
160. The other matter was this, my Lord. As indicated, plainly the sum working out has to be achieved, because as my understanding of your Lordship's is, and I mention it to establish that one clearly has this right, the parties have to look at the position as it was immediately before the critical letter was written.
161. MR JUSTICE MITTING: Yes. Hampshire have to undertake a review in the light of the local arrangements in place in the spring and early summer of 2004 applying the criteria that I have identified.
162. MR STRAKER: On the material which had then been provided them by the claimants.
163. MR JUSTICE MITTING: Upon that I will hear further submission, because it may be that it would be sensible to permit further material to be submitted. One does not wish this to be simply a sterile exercise, but a real one.
164. MR STRAKER: Well, my Lord, yes, and plainly that has to relate to the circumstances as they were at that time.
165. MR JUSTICE MITTING: Certainly. But one can envisage, for example, Hampshire conducting a proper review saying, thank you very much for these anonymised client details, we need their names so we can check with our social services records and so forth and housing records, or we require further information. Now I see no reason why that sort of information should not be supplied and I do not see why it should not be volunteered.
166. MR STRAKER: Yes, my Lord, that certainly can happen. I mean we have had an unfortunate history in the past where we have had a refusal to supply.
167. MR JUSTICE MITTING: I know and the reason given is the Data Protection Act. I say no more about that.
168. MR STRAKER: My Lord, it has all been exceptionally unfortunate. Well, my Lord, it may be that the matters can be left there as far as that is concerned. One other matter I would trouble your Lordship for, though, is this. It would appear to be proper, given the fact that your Lordship has said that the working out is being done effectively as if your Lordship were granting specific performance for a request to be made, and to be made of the claimant, to formulate within a certain amount of time, if I may respectfully suggest so, the precise, if I can put it in this term, prayer that would have been made had the Chancery proceedings or Queen's Bench proceedings been issued.
169. MR JUSTICE MITTING: Yes, that is reasonable. The duty of co-operation implicit in all business contracts still subsists and applies to this contract.
170. MR STRAKER: My Lord, yes.
171. MR JUSTICE MITTING: So that it is for the claimants to co-operate with Hampshire and Hampshire to co-operate with the claimants, both in making its requirements known and in the claimants in meeting reasonable requests for information. One hopes that at the end of this litigation the necessary business co-operation between the parties will occur, which will permit the order that I propose to make when we have discussed it in detail have worthwhile effect for both sides.
172. MR STRAKER: My Lord, yes. The only other matter that I would canvas at this stage, which in my respectful submission it would be appropriate at least for your Lordship to consider, because the parties obviously have to think about what they want to do, is the question of leave to appeal which, in my respectful submission, can be justified either because of the -- and I put this very loosely and broadly, if I may -- peculiar working out of this particular case in terms of the importance therefore being attached to it, or the reasonable prospect of being able to succeed on appeal. So I would ask on that basis, my Lord.
173. MR JUSTICE MITTING: Mr Knafler?
174. MR KNAFLER: My Lord, in terms of the money in court obviously my client would very much appreciate an order releasing that sum, which I think is the sum of £40,000, to her as soon as practicable.
175. As far as concerns us formulating a precise prayer, in an sense -- obviously I accept in principle that if requested we ought to do that. But in a sense, the relief that we wish to pray for is the relief that we actually hope to be able to negotiate over the next few days with Hampshire as being an appropriate working out of your Lordship's order. I just hope that it is possible for the parties to reach a sensible business-like agreement about that.
176. MR JUSTICE MITTING: There is no point in having pleadings for the sake of it, but I think what Hampshire want to know is what you seek from them, not just "do the review properly", but "this is the outcome that we hope that you will achieve and these are the reasons".
177. MR KNAFLER: And it may be more helpful if I was to indicate perhaps that we would try to formulate in some detail in a letter what we think ought to happen in the light of your Lordship's order in some detail, but as precisely as we can, and then see if there can be some measure of agreement on that. Obviously if the parties cannot agree then we would need to formulate our case on the remedy more specifically and we may have to come back before your Lordship, but for us simply to formulate a prayer for relief --
178. MR JUSTICE MITTING: That is not what you seek is it Mr Straker? What you want is their proposals, is it not?
179. MR STRAKER: My Lord, yes. That would be apt for the sake, as your Lordship says, of having a pleading. But there will have to be a pleading I do not doubt in due course.
180. MR JUSTICE MITTING: Well, there will have to be an order. I am not so sure it needs to be preceded by a document saying, we seek this order. What is required is a draft order, is it not?
181. MR STRAKER: My Lord, yes, and it may be that one is being slightly old fashioned in connection with this, but one would have expected in that order your Lordship to say leave to amend to ask for X and then order being for X.
182. MR JUSTICE MITTING: If you insist, the parties have to be fulfilled.
183. MR STRAKER: My Lord, as I say, it may be that one is being slightly old fashioned in connection with that, and forgive me if I am, but, my Lord, that is the position.
184. Plainly as your Lordship says there has been a liberty to apply, and we would like to see precisely what it is therefore that Supportways Community Services are contemplating in the light of your Lordship's judgment. If it is more convenient for your Lordship to deal with any question of leave to appeal at a later date, then we would not wish to stand in the way of that.
185. MR JUSTICE MITTING: No, I want to deal with everything that I can now.
186. MR STRAKER: My Lord, yes.
187. MR JUSTICE MITTING: Right.
188. MR KNAFLER: My Lord, I am not sure if I have made submissions on the leave to appeal.
189. MR JUSTICE MITTING: Well, I have taken from your silence that you do not want leave to appeal, so I do not think you have any status in the application that has been made by the defendants.
190. MR KNAFLER: No, but the issue that was raised by my learned friend that I have not made any submissions on is the extent to which -- and I do not know if your Lordship necessarily wants submissions on it at this stage -- the scope of the review would be limited to the material actually provided to the local authority back in the early part of 2004.
191. MR JUSTICE MITTING: No, that is a futile exercise. The purpose of the order is to try to get the parties to co-operate to do that which should have occurred back in early 2004.
192. MR KNAFLER: That is what I understood.
193. MR JUSTICE MITTING: And if that involves the supply of further information, I can see no rational basis for Hampshire to say no, just as I cannot see any rational basis for the claimants to say, we are standing on what arguments we were standing with then, and you cannot have anything else.
194. MR KNAFLER: That is what I was hoping that your Lordship would indicate.
195. MR JUSTICE MITTING: That is what I indicate.
196. MR KNAFLER: Thank you.
197. MR JUSTICE MITTING: Right, as far as orders are concerned, these are they. The money in court will be paid back to the claimant's solicitors together with any interests thereon. I refuse leave to appeal, both because I regard the decision that I have made as a one-off on a particular set of factors or circumstances and not as having any wider impact on the law and, secondly, because I do not believe that there are reasonable prospects of success on appeal against my ruling.
198. Thirdly I give liberty to apply. Fourthly I give leave to amend the claim form to include the prayer for relief, the order for which ultimately is to be drawn up, I hope by agreement, but if necessary settled by me. This is not part of the order, but an expression of wish.
199. If I am required to intervene further, I suggest that you ask me to do so before the end of the last three days of term. On Wednesday I am dealing with an entirely discrete matter and would not welcome any interruption. Indeed you will find the court full to overflowing with others, so if I am going to do anything it would have to be on Monday or Tuesday. Could any application for me to assist in drafting an order, or make further consequential orders, or do whatever you want me to, be please at the Administrative Court Office by at the very latest Friday week.
200. MR STRAKER: My Lord, yes.
201. MR JUSTICE MITTING: Given the time of the application, I do not think you will be very popular if you do get an application to be heard on the penultimate day of term!
202. MR KNAFLER: Just formally, your Lordship, I am not sure you made costs order.
203. MR JUSTICE MITTING: I am so sorry, you are quite right. I thought I had already made that, but if I have not then I order that the defendant pay 60 per cent of the claimants' costs, the claimants pay 40 per cent of the defendant's costs, such costs to be off-set one against the other and to be the subject of detailed assessment if not agreed. Is that all?
204. MR KNAFLER: I believe so.
205. MR JUSTICE MITTING: Thank you very much.