England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		5th July 2006

1. MR JUSTICE COLLINS: This is an application brought under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 by the applicants, who are aggrieved by an order which has taken effect and wish to question its validity on the ground that it is not within the powers of the Act. That means that it is submitted that the decision of the inspector that is in issue in this case, whereby he upheld the Derbyshire County Council (Footpath from Bridleway 11 along the bank of the River Trent - Parish of Willington) Modification Order 2002 was wrong in law.
2. The applicants live in a house which is close to the river at the point where the footpath commences. The house in question is part of a development that was built in 1999/2000, and their house originally had a garden which stretched approximately to halfway between the building and the river bank itself. The distance in question is something in the order of 9 or 10 metres in all. Until that development was built, there was open field from the point where the footpath began to the point where it ended. It runs alongside the river bank for most of its length, but it ends a little way away from the river bank at what is described as recreational grounds. Presumably these are places where some sporting activities can take place.
3. Beyond the recreational grounds there is some question as to whether any public right of way either does or will continue to exist to join with the nearest road. However, as the inspector decided, that the claimed path might become a cul-de-sac if the licence across the relevant land lapsed was in his view not material to his decision concerning existing rights. That may be in principle correct because there is no reason why a public footpath should not exist, albeit it is a cul-de-sac. On the other hand, if it runs to no apparent purpose and to no destination which obviously would need some public access, that seems to me to be a factor which is capable of being material when an issue is raised as to whether there has indeed been an intention to dedicate for public use.
4. No doubt a path along the river bank is pleasant for the purpose of exercise, perhaps for walking dogs and, it is said, for viewing flora and fauna. I am not quite sure what fauna, but certainly it may well be flora. It is also used by fisherman. Indeed, one of the matters raised against it was that it might interfere with anglers who would be disturbed, or rather whose potential catches might be disturbed, by the presence of people using the footpath or using the river bank.
5. The relevant law which determines the approach in a case such as this is set out in section 31(1) of the Highways Act 1980, which so far as material provides:

"Where a right of way over any land, other than a way of such character that use of it by the public could not give rise at common law to any presumption of dedication, has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it."

6. That section is the Parliamentary approach to setting the balance that has to be drawn between the rights of a landowner and the rights of the public to use particular paths. The general principle is, as can be seen, that if there has been actual enjoyment as of right without interruption for a full period of 20 years, then the presumption arises (although it is described as a "deemed dedication") that there has been such a dedication.
7. There are thus two stages to determining whether the right of way exists in a given case where section 31 is the test. First, it has to be decided whether or not those who assert the right have proved that there has been actual enjoyment over the relevant 20-year period. Only if that is established does the second part come into play, that is to say the ability of the owner (as it normally would be) to show that there was no intention during that period to dedicate. It is obvious from that that user as of right and without interruption does not and cannot of itself prove an intention to dedicate, because it is open to the owner to disprove, notwithstanding the user as of right and without interruption, that there was a dedication.
8. It is important to note that Parliament has decided that what has to be considered, if what has been described as the proviso is reached, is whether there was an intention to dedicate during the relevant period. There are a number of authorities on this section. It is the law that during the period means that, if it can be shown that at any time during that period there has been sufficient evidence that there was no intention to dedicate, that suffices. It is not necessary for the landowner to show that he had that intention throughout the whole of the 20-year period.
9. In this case the relevant period is that before 2000, because it was when the houses were built that steps were taken to block access to this path to the public. That was the event that triggered consideration of these issues. The matter was, as is the normal practice, put to an inquiry by an inspector. His inquiry commenced in March 2004. His decision, which is the decision under attack, was in two stages. The first decided - this was is a decision given on 13th June 2004 - that the order should be in principle confirmed. There was then a subsequent inquiry because there was an issue as to the precise width of the path and a question of the precise details of it. That was dealt with in a subsequent decision by the inspector given in May 2005.
10. The decision under attack is the earlier one in June 2004, which confirmed the existence of the right of way alongside the river, and more particularly past the applicants' house, running, as I have said, approximately 9 metres from their house. It is important for them because they purchased the strip of land between the end of their gardens as the house was originally laid out and the river bank, and so have an extended garden stretching over the whole of the distance. Obviously, if the footpath is truly to be recognised and the right of way has been dedicated, people will be able to walk through their garden and that, again for obvious reasons, they do not regard as a satisfactory state of affairs. That sets the scene.
11. I have said that there is learning on the section. The most recent authority, and the one that brings together all the previous authorities, is a decision of the Court of Appeal R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs and R (Dr Leslie Drain) v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1597, [2006] 2 WLR 1179. It is I think unnecessary for me to refer to it in any detail. Suffice it to say that it considers all the relevant existing authorities. The conclusion is set out in the judgment of Auld LJ, with whom essentially Arden LJ and specifically Bennett J (who was the third member of the court) agreed. At paragraph 63 Auld LJ said this:

"63. In my view, the proviso, both on its terms and read in the context of section 31 as a whole, is concerned with intention and its proof, not with communication of intention to users of the way in question. To construe it as requiring the latter or even proof of overt and contemporaneous acts falling short of such communication would be to read words into it which would have been clearly included if that had been intended, and which would run counter to the operation of section 31 read as a whole. As Rose LJ observed in Ex p Cowell [1993] JPL 851, what constitutes sufficient evidence of intention will vary from case to case. And, as Sir Donald Nicholls V-C indicated with the agreement of Hirst and Waite LJJ in Ward v Durham County Council (1994) 70 P & CR 585, 590, and Dyson J acknowledged in Ex p Dorset County Council [2000] JPL 396, 406, it will be rare for evidence to be regarded as sufficient for that purpose without proof of some overt and contemporaneous act or acts. Even with proof of such acts, the sufficiency of it for the purpose will depend on the circumstances. For example, the more the landowner knows the more he may be expected to protest to users of the way, as in the Ward case in which Sir Donald Nicholls V-C indicated in the following passage, at pp 590-591:

'Mr Ward did give some evidence that he wanted to keep the back road private. He recalled an instance shortly after he moved in when a neighbour told him to keep his lorries to his own part of the road. I do not think that, set against a background of uninterrupted user by the public for the relevant period of 20 years, this is sufficient evidence of no intention to dedicate. In assessing intention regard must be had to what the landowner knowingly permits to happen on his land.'

Where, on the other hand, there has been little use of the way and/or little knowledge of it by the landowner, it may be that a 'private' overt act, namely one not communicated to or likely to come to the attention of users of the way, would suffice, because there would be no or little reason for the landowner to protest to users and/or other third parties.

64. For all those reasons, I am of the view that there is no statutory threshold as to sufficiency of evidence for the purpose of the proviso. It is for the fact-finder to determine sufficiency, usually as a matter of weight, on the facts of the particular case, subject only to Wednesbury constraints: ..."

12. It is obvious from that, and indeed perhaps as a matter of common sense, that the fact that the assertion by the landowner (as it usually will be) that he has always had the same intention, that is to say not to dedicate the contested right of way as such will be unlikely to prevail, if all that had happened in the previous 20 years shows that nothing has been done by him to prevent consistent public use as of right. His assertion will be unlikely to be regarded as sufficient evidence of his intention. But it is important to bear in mind that the evidence that he gives to that effect is just that: evidence. The question in any case is whether it is sufficient. Normally it will be the primary evidence which is put before an inspector. What he then has to do is to see whether there is any material which supports that assertion. Such support will usually be found in some "overt" or "contemporaneous" material which shows that indeed that intention was one which did exist. Such material may be in the form of a document written at the relevant time which asserts the lack of intention, for example an objection to the relevant authorities at an earlier stage when there was some question raised as to whether proceedings were going to be taken to indicate that the right of way existed (see for example R v Secretary of State for the Environment, Transport and the Regions, Ex p Dorset County Council). Equally, it may be some licence which exists, or a document in some form, which makes it plain that there never was any intention to dedicate, even though that document was unknown to any member of the public, or indeed to anyone, until the issue was raised other than the landlord himself and those were signatories to that document. Equally, as is obvious, that support may be found in evidence that there has been positive action to discourage or prevent particular use of the alleged right of way. It is that sort of evidence which was put forward in this case, but which the inspector decided was insufficient to enable the applicants to take the benefit of the proviso.
13. I should therefore turn to the inspector's decision. He sets out the issues. In paragraph 38 he refers to section 31(1) and cites it, and he includes his comments on it as he goes through. In considering the words of the proviso, he qualifies the "sufficient evidence" by adding in brackets:

"of an overt and contemporaneous act, not necessarily brought home to the public at large."

14. At the time the inspector reached his decision he was entirely justified in that qualification because that appeared to be the law as set out in the cases before the decision in Godmanchester. However, it was made clear by the court in Godmanchester that an overt and contemporaneous act was not something which was as a matter of law needed in order to establish sufficient evidence. This goes back to the point that Mr Hobson made, and which I entirely accept, and that is that on the language of the Act the evidence will normally be the evidence of the landowner. The question will be whether that evidence, coupled with any supporting evidence which tends to show that that intention was indeed held, is sufficient to enable the owner in question to obtain the benefit of the proviso.
15. It is in my view important to note that qualification drawn by the inspector, because when he comes to consider the evidence of the then landowner, a Mr Wooddisse, he refers back to it. I pick this up at paragraph 87 of his determination where he says this:

"At the inquiry, Mr Wooddisse demonstrated a consistent attitude by his family, as owners, of a non-acceptance of walkers across their fields. However that was only clearly articulated in his sworn statements presented to the inquiry. The first (September 2000) was on the occasion of his disposal of the land upon which Mr Money had already built a fence in 1999 and in early 2000. The second was 4 years after the way had been called into question and the case for the Order by the OMA had been received (April 2004). Those statements cannot of themselves be considered as expressions of intention not to dedicate to the public use of the path as they were not contemporaneous with any event before the use of the way had been brought into question."

16. It seems to me that that last sentence is plainly wrong as a matter of law. They can of course be considered as expressions of intention not to dedicate, but whether they will be regarded as sufficient evidence of that intention is another matter. However they cannot be disregarded. They must be taken into account. Indeed, they are central to the consideration whether that intention existed because it is the intention of Mr Wooddisse, who was the relevant owner over the period. I think part of the period actually was his father, but he was over the bulk of it. Accordingly, that is indeed the evidence of no intention. What the inspector then has to do is to consider whether it is supported.
17. Mr Hobson makes the point by referring to the authorities. He submits that they show that it is not necessary to produce a great deal of material in a given case to enable an inspector properly to decide that the intention not to dedicate has been shown to exist. It is particularly important, of course, to ascertain whether the inspector accepts that the witness is giving an honest and truthful account of his intention. The language used by this inspector, that Mr Wooddisse demonstrated a consistent attitude by his family, suggests that he did not reject his evidence, but that he, as the wording in paragraph 87 shows, took the view that, because it was not contemporaneous, it was not material which could be given any weight by him. He thus turned to consider, and in effect to consider only, the evidence that existed of interruption. That was evidence given by one witness at the inquiry, who perhaps ironically was called by those supporting the existence of the right of way, and some statements made by objectors who were not called to give evidence.
18. There are other matters of concern in the inspector's report. In paragraph 63, in dealing with the first stage (that is to say, whether the deeming of dedication arose), the inspector refers to some of the material which went to the question of interruptions. That paragraph refers to objectors' submissions that evidence asserting against a public right of way existed from at least 1965. The point was made that since 1960 challenges had been ongoing. He refers to three such alleged challenges. Then in paragraph 66 the inspector says this:

"Prior to 1992 there appears to be only occasional challenges by the Wooddisse family as owners and agents to those who cross the field and outfall in the riverbank near Sandy Island. In my view those challenges to user - sometimes coupled with an implied or express permission - may have led some persons to forego the use of the riverbank path for some or all the time. That appears to be the case with Mr McDermott and Mr Palmer [who were two of the witnesses referred to in paragraph 63], but in my view they do not constitute an interruption which brought in question use by the public during the 20 year period to 2000 for the purposes of S. 31(2) Highways Act 1980."

19. Mr Mould submits that that paragraph does not indicate that the challenges were to the use of the footpath. They may have inhibited some persons from using the footpath, but it is important to note, and this is something that had come out in the consideration of the report, that the challenges were, at least on occasions, not to use of the path as such, but to misuse, in the sense that there was trespass onto the field, there were dogs running and on occasions troubling livestock, and there was an occasion when kites were being flown in the field. Those challenges would not (and Mr Hobson rightly accepts this) by themselves indicate a challenge to use of the footpath as a footpath, and it is only challenges to that use which are material for the purposes of this case.
20. However, as against the clear evidence before the inspector of considerable use without challenge, there was some evidence, albeit in fairly general terms, of challenge. There was in addition to the general terms specific evidence by at least one witness of challenge. That witness was a Mrs Webster. In paragraph 91 the inspector records her evidence thus:

"Mrs Webster had been seen using the path several times over the years and advised that it was not a public path, but had been allowed to continue and not told that she should no longer use it - her use appears to have been tolerated. In the 1990s, having gained access through the fence built by Mr Wooddisse on BW11, which was broken, she had returned with her dog and had been told that she should not have used the path. Mr Wooddisse could not recall her earlier use and only the conversation at the fence. On the evidence examined with both parties present, it remained unclear to me whether or not she had been unequivocally told not to use the riverbank path again. It could be said that was some evidence of an intention not to dedicate a right of way on foot over the adjacent riverbank. It was not sufficient evidence of an intention not to dedicate a public right of way on foot along the riverbank and thereby invoke the proviso in S. 21(1) H A 1980."

21. There was only one footpath along the river bank. Although the inspector's language is not perhaps as clear as it might be, I accept Mr Mould's suggestion that what must have been meant was that the inspector was simply saying that although that was some evidence of an intention not to dedicate, in his view it was not sufficient to enable the benefit of the proviso to be taken.
22. I should refer to the significance of BW11. The footpath at the point just beside the applicants' house commences at the end of BW11, that is bridleway 11. It is to be noted that, certainly until the 1980s, Mr Wooddisse was unaware that that bridleway existed as a public right of way. That would mean that there was no access to the footpath. It would mean, and certainly would be consistent with a view being taken, that there was no need to take any specific action in relation to the footpath because it was unlikely to be assumed that it was dedicated or there had been any intention to dedicate. That is a relevant factor. Indeed, the inspector noted that the opportunity to him to deny access was limited because unless BW11 had been fenced off at a very early date, there would be no practicable means of physically interrupting use of the claimed path. However, those matters cannot be said to be in any way determinative.
23. There was other evidence in the form of statements relating to challenges. The inspector records the views of the OMA that it was unfortunate that there had been no opportunity to cross-examine those witnesses. The inspector was entitled, of course, in those circumstances to accord them less weight than if they had been tested. In paragraph 90 he deals with them. He makes the point that it was not clear whether the objections in their cases were objections made on the whole to the use of the path, as opposed to the use of the land other than the path. Nonetheless, there was some evidence there, the weight to be attached to it being entirely a matter for the inspector, which could be said to be supportive of Mr Wooddisse's expression of his intention. The most positive support, of course, was that given by Mrs Webster.
24. Mr Mould submits that, read as a whole and looked at fairly, the inspector did not misdirect himself. He simply decided on the facts of the case that, notwithstanding the expression of intent and the evidence of Mr Wooddisse, he was unable to accept that there was sufficient evidence which overcame the presumption and the deemed dedication. That, Mr Mould submits, he was entitled to do. It was a matter for his judgment upon the material, and I should not interfere unless persuaded that there was no proper basis for the inspector to reach that conclusion. As a matter of approach that is right, and I do not analyse his decision and go through it with a fine-tooth comb. That is not the right approach.
25. However, what seems to me to be significant here is the approach which effectively tends to put on one side the evidence of Mr Wooddisse because it was not contemporaneous. I have gone through that already earlier in this judgment. It does in my view indicate - and a fair reading of the decision as a whole supports rather than overcomes that view - that the inspector was looking at the evidence of alleged interruption on its own, as it were, to see whether it was sufficient, on the basis that Mr Wooddisse's evidence, as he said in paragraph 87, could not be considered as expressions of intention not to dedicate. That is an important flaw, in my judgment, in the inspector's decision-making approach. Equally, one is concerned that he records the submission of the OMA that on balance it should be concluded that the evidence against the acquisition of public user was outweighed by the evidence supporting the existence of a path. Mr Hobson submits and Mr Mould accepts that that is not a proper approach. But Mr Mould equally submits that that is merely a record of the submissions made by the OMA. However, the inspector does not in terms say it is wrong, and I accept Mr Hobson's submission that, if one looks at the decision as a whole, it would seem that that is indeed the approach that the inspector has adopted.
26. What, as I say, the inspector should have done is to consider whether the intention expressed by Mr Wooddisse - which could as a matter of fact have been sufficient on its own but was unlikely to be if there was nothing to support it - was evidence which if accepted was sufficient to establish the necessary intention. There was evidence to support it. It may be that that evidence was regarded by the inspector as not very substantial. But there is no need for very substantial evidence if one once accepts that the proper approach is that one looks at the evidence given by the landowner and then one sees whether there is material to support it. Equally, there is nothing in the inspector's decision to indicate that he rejected the landowner, in the sense that he did not believe that he was giving evidence that was truthful evidence. Truthfulness is important. I accept entirely that one is concerned with sufficiency and it may well be that, however truthful the individual is, if he cannot show anything in his evidence to support it, an inspector is entitled to say, "I am very sorry, I am not suggesting you are not telling me the truth, but really there is nothing which supports you and indeed there is a lot of material which does not support you." But it is a very different picture if the inspector says to himself, "I accept that he is a truthful witness and there is some material but not a great deal which supports him." But why should there be a need for a great deal if the primary evidence of the landowner is, generally speaking, acceptable, truthful and there is no reason to reject it?
27. In those circumstances I take the view that this decision was flawed and it should be quashed, and the matter should be remitted for reconsideration.
28. Is that not the right...?
29. MR HOBSON: I am afraid, my Lord, no. The consequence, if your Lordship quashes the decision, the order is quashed and that means there is no order and --
30. MR JUSTICE COLLINS: They have to start again.
31. MR HOBSON: They have to consider whether they start again.
32. MR JUSTICE COLLINS: That is fine. In that case all I do is to quash the order.
33. MR HOBSON: Quash the order, my Lord, yes.
34. My Lord, with respect, I was going to respectfully point out two small factual considerations.
35. MR JUSTICE COLLINS: By all means.
36. MR HOBSON: One of them your Lordship has picked up: the Highways Act was 1980, not 1981.
37. MR JUSTICE COLLINS: I was going by your skeleton.
38. MR HOBSON: It is our error, I apologise for that.
39. MR JUSTICE COLLINS: It is your error not mine.
40. MR HOBSON: It is corrected now. A little later, just shortly before your Lordship referred to the Godmanchester case, your Lordship referred to the relevant period as 1980. The period was 1980 to 2000.
41. MR JUSTICE COLLINS: Did I say 1980 instead of 2000?
42. MR HOBSON: It should have been 2000.
43. MR JUSTICE COLLINS: That was a slip of the tongue.
44. MR HOBSON: Exactly.
45. I am obliged then for the order quashing the decision. I apply for an order for my clients' costs to be paid by the first respondent.
46. MR JUSTICE COLLINS: You cannot resist costs, can you?
47. MR MOULD: I cannot resist either of those orders.
48. MR JUSTICE COLLINS: Have you served a schedule?
49. MR MOULD: Yes.
50. MR JUSTICE COLLINS: I think I have a copy, have I not, somewhere?
51. MR HOBSON: We have a schedule. I am not sure - as always with these things, your Lordship will be overcome --
52. MR JUSTICE COLLINS: Have a copy from the other side. I have them both. It is always interesting to see how they compare --
53. MR HOBSON: Your Lordship --
54. MR JUSTICE COLLINS: -- having regard, of course, to your eminence Mr Hobson.
55. MR HOBSON: Your Lordship will always be struck by the modesty of the fees, and how they have gone down since your Lordship's day.
56. MR JUSTICE COLLINS: Gone down?
57. Mr Mould, what do you have to say?
58. MR MOULD: Although it is of less consequence, given your Lordship's decision, the modesty of the fee is certainly an apt way of describing what you see in the box next to mine. There we are, that is not the issue.
59. My Lord, the only point I would make - and I have not had a chance to speak to my learned friend about this, so this comes as a bolt from the blue, and I agree that it would (inaudible) - but the one thing I would respectfully draw your Lordship's attention to is counsel's fees shown on my learned friend's schedule.
60. MR JUSTICE COLLINS: You say they are too much, do you?
61. MR MOULD: The point is a simple one. It is one your Lordship is familiar with. It is always delightful to see both Mr Hobson and Mr Fraser --
62. MR JUSTICE COLLINS: You say they did not really need a silk.
63. MR MOULD: I wonder whether in a case of this scale and complexity they ought to have more than one counsel's fee for today. I would immediately acknowledge that that should be Mr Hobson rather than my learned friend Mr Fraser, in deference to Mr Hobson's submissions. Might I suggest that your Lordship would consider that instead of a fee for the hearing of £9,000, that perhaps that a reduction to perhaps, I do not know, £5,000 plus VAT.
64. MR JUSTICE COLLINS: £5,000, did you say?
65. MR MOULD: That is a matter for your Lordship.
66. MR JUSTICE COLLINS: It is very invidious for me to have to make these decisions. You do not quarrel with the time?
67. MR MOULD: No. In every other respect the - I mean, certainly so far as solicitors' costs are concerned there is a remarkable congruence between figures. In fact I think ours are slightly more.
68. MR JUSTICE COLLINS: It is just you come cheaper than Mr Hobson.
69. MR MOULD: Mr Hobson, Mr Fraser and I were given, on the face of it, similar (inaudible), but I suspect that the quality of advice given on the other side is far greater than mine. Certainly in quantity, particularly the fee for the hearing, I suspect that is (inaudible) the function of two things, first of all, my learned friend's eminence but, secondly, the presence of two counsel.
70. MR JUSTICE COLLINS: Yes.
71. MR MOULD: I put that submission to your Lordship for --
72. MR JUSTICE COLLINS: They obviously have greater travel expenses to come down to London.
73. MR MOULD: Yes. Not quite so far. I am further down Fleet Street than I used to be. Your Lordship sees the point.
74. MR JUSTICE COLLINS: Mr Hobson?
75. MR HOBSON: As your Lordship says, it is invidious to be debating the figures, but just two shorts points I would wish to make. First of all, I submit that this is a case which did justify two counsel. So far as the subject matter is concerned, it is a specialist area of the law which has some complexity. So far as Mr Fraser-Urquhart's presence is concerned, I found his presence useful. The second point really (inaudible) involved in the case. If your Lordship goes to the box of counsel's fees, your Lordship sees the figure above the brief fee, the fee for hearing, if he had not been involved and I had done all the drafting, that figure would have been a bit higher. So the respondent has gained by having the junior doing the drafting. So it is swings and roundabouts.
76. I do not know if there is anything else to add. My Lord unless I can assist, it would seem to me to be reasonable.
77. MR JUSTICE COLLINS: I find all this very difficult, this task of making a summary assessment. Apart from anything else, I am out of touch on counsel's fees now. It is 12 years I think since....
78. MR HOBSON: Time just flies, yes.
79. MR JUSTICE COLLINS: But you would prefer me, would you, to make an assessment rather than --
80. MR MOULD: I think everybody would prefer that. I do not know if I speak for my learned friend.
81. MR JUSTICE COLLINS: Even if I go a bit higher?
82. MR MOULD: Exactly so. We soon use up whatever difference there is on a taxation.
83. MR HOBSON: We are content with a summary assessment, my Lord.
84. MR JUSTICE COLLINS: Mr Hobson, I take your point. I think that, certainly the advisory stage, it was perfectly reasonable to go to Mr Fraser-Urquhart and bring an experienced silk in to argue the point. Mr Mould suggests, as I understand it, that it ought to have been one throughout, that one he would accept as being properly you. There is no breakdown as to the fees for Mr Fraser-Urquhart and the fees for you, save for I presume the £1,950 for advice etc is his rather than yours.
85. MR HOBSON: I think that is right, my Lord, yes. I may get a modest amount for just looking over it, but certainly the lion's share of that is his.
86. MR JUSTICE COLLINS: I appreciate there is no great basis for it, but I am looking at the figure overall and it is quite a high figure, perhaps understandable. I am prepared to reduce it, but only very slightly. I think that a proper end figure would be to reduce it by a total of £1,500.
87. MR HOBSON: Yes.
88. MR JUSTICE COLLINS: Whatever that reaches.
89. MR HOBSON: That is in respect of both those items there; a global figure?
90. MR JUSTICE COLLINS: That means the global figure will go down by £1,500. I know there is VAT to be taken into account. So what I think the sensible thing to do is to reduce counsel's fees by £1,500, and then someone can work out what that means in terms of VAT and reach a final figure.
91. MR HOBSON: Thank you very much indeed.
92. MR JUSTICE COLLINS: Sorry Mr Mould.
93. When you have worked out a figure, can you give the figure to the associate or to the court in due course. I do not mean immediately, but so that it can be included in the court order in due course.
94. MR MOULD: Of course.
95. My Lord, just one other matter. I make an application for permission. I deal with it very shortly indeed, if I may. I simply say that in a sense this case has gone the other way in relation to the Godmanchester case. Godmanchester we have been looking at how far the law --
96. MR JUSTICE COLLINS: Has it? I have not, as far as I am aware, made any new law, I have simply applied Godmanchester. I accept that if Godmanchester goes to the Lords and the Lords say that that approach is wrong then different considerations could apply, but I think you better try to persuade the Court of Appeal.
97. MR MOULD: My Lord, I am content to leave it that way.
98. MR JUSTICE COLLINS: Because I do not think this case is one which has wide implications. It is merely a decision on its own facts on a particular decision letter --
99. MR MOULD: My Lord, I am --
100. MR JUSTICE COLLINS: -- and applying law that is set out at the moment by the Court of Appeal.
101. MR MOULD: If appropriate I will pursue it that way.
102. MR JUSTICE COLLINS: All right.
103. MR MOULD: I just need to have an order from you.
104. MR JUSTICE COLLINS: Oh, certainly.
105. MR HOBSON: I am obliged to your Lordship for sitting a little later to complete the case. Thank you very much.
106. MR JUSTICE COLLINS: Thank you all.