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
		31st August 2006

1. MR JUSTICE SULLIVAN: This is an appeal under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal which was issued on 27th February 2006 following a hearing on 21st February 2006. The appeal was concerned with a statement of special educational needs in respect of the appellant's son, JF, who had been diagnosed with Autistic Spectrum Disorder and had subsequently received a diagnosis of Asperger's Syndrome. Before the Tribunal, the appellants, with the assistance of expert witnesses, were contending that JF should not be seen as a child with emotional and behavioural disorders requiring a school which catered for such disorders but should instead be sent to an independent school for children having Autistic Spectrum Disorder.
2. The Local Education Authority, the first defendant in these proceedings, objected to the cost of a placement at the appellant's school of choice and proposed another school, Brantridge School, which would cost significantly less on the figures before the Tribunal. The Tribunal identified the determining issue as follows:

"There is a considerable discrepancy in the cost of placement at Brantridge School and at the Forum School. The issue for the Tribunal to decide is, therefore, whether Brantridge School is able to deliver the provision that is necessary to meet JF's special educational needs. If that is the case, then placement at the Forum School would be unnecessary and therefore would be an unreasonable use of public expenditure."

3. At the hearing, the first defendant called the headmaster of Brantridge school, Mr White (erroneously referred to as Mr Newton in the Tribunal's conclusions). Paragraph 9 of the Tribunal's decision records part of Mr White's evidence as follows:

"Mr White felt that Brantridge School could meet all of JF's special educational needs and deliver the provision regarded as necessary in his statement and the amended provision that had been agreed by the LEA. JF had not been to the school for an assessment but he had visited him at the PRU and had seen him in a number of contexts. He had discussion with parents and with professionals. He informed us that the school was not a school for children with emotional and behavioural difficulties. All children have social and communication difficulties at the school. The school is registered with the National Autistic Society and LEAs place children with Asperger's Syndrome at the school. The school is able to offer an extended curriculum which would help develop social skills [emphasis added]."

4. Pausing there, it will be seen that the passages underlined were a direct response to the appellant's core submission. Mr White gave other information about Brantridge school saying, inter alia:

"... the nature of the school has changed dramatically over the last few years and should not be regarded as a school [for] children with purely behavioural difficulties."

5. In its conclusions in respect of the other parts of the statement of special needs, the Tribunal accepted the diagnosis of Asperger's and that there had to be significant specialist provision to meet that special need. It is unnecessary to rehearse the details of the provision because there was no significant dispute as to what was required. What was in dispute was whether what was required could be provided by Brantridge.
6. The Tribunal concluded, in part:

"G. We noted the provision that had been agreed as necessary to meet JF's special educational needs which is contained in the attached working document and also ordered by this Tribunal. We concluded that, on the evidence given to us, Brantridge School is capable of delivering this provision. We noted the reservations put forward by JF's parents and Mrs Strudwick regarding the school. However, there appears to have been a considerable change in the profile of the school in recent years. The evidence given by the LEA regarding the school was mainly given by Mr [White] at the hearing regarding the nature of the school. To some extent, we agreed with the statement put forward by Mrs Strudwick that the evidence given had to be taken 'on trust'. There had not been much written evidence submitted to the Tribunal by the LEA regarding Brantridge School.

H. However, the evidence given by Mr [White] was powerful and persuasive. The nature of the school has changed. All pupils have social and communication difficulties. Assessment by the speech and language therapist had shown that JF had good underlying receptive and expressive language but has severe social and communication difficulties. The proposed class for JF is small, and is taught by teachers who have specific training in teaching children with autistic spectrum disorders. It is also well supported by assistants who are also additionally trained. The school is able to provide the speech and language therapy considered necessary and Mr [White] informed us that he had confirmed with the therapist that the required amount of therapy could realistically be provided. Mr [White] has also arranged for occupational therapy to be provided.

I. We concluded that the peer group for JF at Brantridge School would be satisfactory. There are children achieving at the same level as JF in the class. The school is able to offer a calm and quiet environment. Residential education was not considered necessary for JF but the provision of this will hopefully be of considerable benefit in providing a consistency of approach. Having regard to the detailed oral evidence given regarding Brantridge School, we were not persuaded that the school would not be able to offer the provision now considered necessary in Part 3 of the statement. Having concluded this, it would therefore be an unreasonable use of public expenditure for JF to attend the Forum School. As we had concluded this, there was no need for the Tribunal to consider whether the Forum School was appropriate."

7. In his skeleton argument on behalf of the appellants, Mr Friel contended that the decision was unlawful on a number of grounds. However, his principal complaint was that, wittingly or unwittingly, the first defendant's evidence in respect of Brantridge School had misled the Tribunal. Subsequent investigations by the appellants have ascertained, firstly that Brantridge was registered with the Department for Education and Skills ("the Department") from 1st January 2003 as a special school for boys with emotional and behavioural difficulties. The Department's list of non-maintained schools, which is regularly updated, identifies the type of special needs that are catered for by the listed schools. Thus, one finds AS for "Asperger's Syndrome and Allied Disorders", AUT/ASD for "Autism/Autistic Spectrum Disorder", EBD for "Emotional and Behavioural Difficulties" et cetera. Looking at the list, some of the schools cater simply for autism or Autistic Spectrum Disorder. Some cater simply for emotional and behavioural difficulties. Others cater for emotional and behavioural difficulties, including Asperger's Syndrome, Attention Deficit Disorder et cetera. Brantridge is listed as catering for emotional and behavioural difficulties.
8. Secondly, Brantridge was not registered with the National Autistic Society ("the Society"). In a witness statement, Mr McNeish, the Director of Autism Quality Programmes for the Society explains the Society's Accreditation Scheme. In brief, in order to obtain accreditation, the first step is for an educational establishment to register with the society. The establishment is then told what standards it has to meet. There is an inspection and the application is then referred to a panel, who will question the Inspector about the team's findings. If the establishment is found to meet the Society's standards it will be given accreditation and provided with a logo and a certificate of accreditation. Thus there is a careful vetting process before any educational establishment is endorsed by the Society.
9. Mr McNeish confirms from his records that Brantridge is neither registered nor is it accredited with the Society. What Mr White had done was to enter the name of the school on the PARIS (Public Autism Resource and Information Service) online database. Mr McNeish explains that, while that service is run by the Society as a public service:

"... it is an open database. This means that it is open to anyone to add information. It does not mean that the [Society] endorse the provision. An entry on the PARIS database does not mean that an educational setting is registered or accredited with the [Society]."

Indeed, if one looks at the information about PARIS that is provided by the Society, it contains the following disclaimer:

"PARIS is a factual information service. It is not quality assured. Every care is taken to ensure that the information included on PARIS is correct but inaccuracies may nevertheless occur. If you discover any information which you believe to be inaccurate please contact the relevant PARIS Development Officer. Services are included on PARIS to assist you. Their inclusion on PARIS does not necessarily imply that the NAS endorses or supports them, nor does the absence of a service imply that the NAS does not support them. The NAS cannot be held responsible for any damage or loss caused by any inaccuracy on PARIS, or on the linked sites/pages."

10. When confronted with this information, the accuracy of which has not been challenged, the response of the first defendant (the second defendant has played no part in these proceedings) was to contend in its skeleton argument that there was no reason why the authority should have disclosed the fact that Brantridge was not accredited with the Society and that Mr White's statement that the school was registered with the Society was technically correct because he had registered the details on PARIS. The Authority further contended that there was no duty upon it to disclose the fact that the school was registered with the Department for emotional and behavioural difficulties rather than autism/Asperger's. It was contended that the details were publicly available and the appellants could and should have obtained them for themselves.
11. I find the first defendant's attitude to this case very troubling indeed. It betrays a complete failure to understand the role of a Local Education Authority in hearings before the Tribunal. Although the proceedings are in part adversarial because the Authority will be responding to the parents' appeal, the role of an education authority as a public body at such a hearing is to assist the Tribunal by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents' case. It is not an adequate answer to a failure to disclose information to the Tribunal for a Local Education Authority to say that the parents could have unearthed the information for themselves if they had dug deep enough.
12. I realise that evidence is not given on oath before the Tribunal but it is no accident that when witnesses do give evidence in a court they promise not merely to tell the truth and nothing but the truth but also the whole truth. This is a recognition of the obvious that telling only part of the truth (that part which is favourable to one's own case) may be as misleading as telling a positive untruth. There is no witness statement from Mr White and he is not a party to these proceedings. It would not, therefore, be either fair or appropriate to speculate as to why it was that he did not tell the Tribunal (a) that Brantridge School was registered with the Department as a school for children with emotional and behavioural difficulties, and (b) that the school was not registered with the Society, although he had entered the School's details in the PARIS database, which did not imply any endorsement by the society.
13. Whether the first defendant's failure to give this information to the Tribunal was deliberate or an oversight is of no consequence for present purposes. What is of great concern is the first defendant's initial response, as set out above, once the true position emerged in the evidence obtained by the appellants. One would have hoped that any education authority confronted by such information would have been most concerned that the Tribunal might have been misled, even if wholly inadvertently, by its evidence. I say the first defendant's initial response because, after taking instructions, Mr Dunlop very properly, if very belatedly, conceded that the fact that the school was registered with the Department as a school for children with emotional and behavioural difficulties and the further fact that the school was not registered with the Society in the sense of being in anyway approved or endorsed by the society should have been disclosed to the Tribunal. However, despite those concessions, the first defendant continued to maintain that the decision should not be quashed.
14. It is common ground that the relevant test where information has not been disclosed to the Tribunal is to be found in the decision of the Court of Appeal in A v Kirklees Metropolitan Council and Dorsey [2001] EWCA Civ 582; [2001] ELR 657. The detailed facts of that case are not relevant for present purposes. It is sufficient to say that a child with special educational needs had a number of wheelchair accidents at his school. When a further accident occurred, he did not return to the school and a new school had to be found. At the hearing before the Tribunal, the Local Education Authority, through no-one's fault, failed to mention the fact that a similar wheelchair accident had occurred some years previously at the school it had successfully argued for before the Tribunal. The parents' appeal was dismissed by Turner J and their appeal to the Court of Appeal was dismissed upon the basis that it was not realistic to think that the Tribunal would have felt able either to give any weight to the earlier accident or to embark on any further enquiry.
15. The applicable principles are to be found in holdings (1) and (2) in the headnote:

(1) the legal nature of the parents' case could be put in either of two ways: a material factor was omitted from the tribunal's consideration, or the family was denied a fair hearing. The matter would be approached upon the basis of well-established principles of domestic law. An argument based on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 did not anything material in the present context.

(2) The question was whether the information could have made a difference. If it was relevant, or if ignorance of it was a source of unfairness, that it would be only exceptionally that relief would be denied. R v Chief Constable of Thames Valley ex parte Cotton at para 60 applied..."

16. The relevant passages are to be found in the judgment of Sedley LJ, with whom Schiemann and Arden LJJ agreed. In paragraphs 20 and 21, Sedley LJ said this:

"20. If there is an answer to Mr Friel's [who appeared on behalf of the appellants] complaint, it has to be (and Mr Lewis [who appeared on behalf of the respondent LEA] pitches his camp upon this terrain) that the evidence of the earlier accident could not have made a difference to the tribunal's decision. As I have said this is not a topic for ex post facto evidence. Nor, with respect, is to be tested, as Turner J appears to have tested it in refusing permission to appeal, by asking whether the decision was likely to have been influenced by the omitted information. The question is whether the information could have made any difference. The answer to it may turn on law – for example it may not have been legally relevant or admissible – or on fact – for example because it was on any view inconsequential or incapable of disturbing the weight of evidence going in the other direction. If it was relevant, or if ignorance of it was a source of unfairness, then it is only exceptionally that relief will be denied. The reasons for this are classically found in the remarks of Bingham LJ, as he then was, in R v Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344 at 60. I will not recite them, but they are to be borne in mind in every case in which a breach of fair or proper procedure is established but it is asserted that the breach has made no difference.

21. Here, however, both Mr Lewis and Mr Friel have, in my judgment, wisely and helpfully premised their argument not on questions of discretion or relief but on the single question: is there a realistic possibility that knowledge of the 1993 accident to D could have altered the tribunal's conclusion that in 1999 it was the right school to name in Part 4 of J's statement."

17. Thus, the question is not whether the correct information in the present case would or probably would have led the Tribunal to reach a different conclusion but whether it could have done so or, to use the words of Sedley LJ in paragraph 21 of his judgment, the question is whether there is a realistic possibility that the information that the school was registered with the Department as a school for children with emotional and behavioural difficulties and was not registered with the Society could have altered the Tribunal's conclusion that Brantridge was capable of delivering the provision that was agreed to be necessary.
18. Mr Dunlop valiantly attempted to persuade me in his submissions that the answer to this question was no. In my judgment those submissions were wholly unrealistic. It was submitted that in order to answer the question it was necessary to look very closely at the detail of the Tribunal's reasoning (see paragraph 24 in Sedley LJ's judgment in A). I agree. However, before turning to the detail in this Tribunal's decision, it is important to bear in mind that Mr White was the key witness as to the ability of Brantridge to deliver the necessary provision. His evidence in respect of Brantridge was the critical evidence on the determining issue. He was not a subsidiary witness or a witness who was dealing with some peripheral issue. His evidence went to the issue at the heart of the case. Moreover, it is plain that the Tribunal was much impressed by his evidence. They recognised that they had to take a great deal of that evidence "on trust" (see paragraph G). They found his evidence "powerful and persuasive" (see paragraph H). Decision letters of this kind have to be read in a straightforward and commonsense way. Once this is done it is plain beyond any doubt that the Tribunal placed very great weight on Mr White's evidence and there is no indication in the decision that they rejected any part of his evidence. In particular, there is no evidence that they rejected his evidence that the school was not a school for children with emotional and behavioural difficulties and that it was registered with the society.
19. Mr Dunlop submitted that registration with the society was not the key issue. He said that there could be schools making excellent provision for children with autism even though they were not registered with the Society. That may well be the case but registration with the Society, implying a level of prior inspection and endorsement by the Society, is plainly a relevant consideration. Mr White thought so, as did the Tribunal. That, no doubt, is why both he and they mentioned it.
20. Then it is said that the Tribunal did not mention the fact of registration in their conclusions. That is true but, as I have pointed out, there is no suggestion that the Tribunal rejected Mr White's evidence that the school was registered with the Society. Thus it provided a favourable starting point from which the Tribunal could analyse the detailed evidence about the provision that the school was able to give (see paragraph H of the Tribunal's conclusions).
21. Allied with this last point is the proposition that the Tribunal relied upon the specific evidence that Mr White had given about the provision that could be made in the school (see the various points that are listed, in particular, in paragraph H of the Tribunal's conclusions). Again, the difficulty with that submission is that the Tribunal's assessment of these details would have been made against the background of a school that was registered with the Society and thus prima facie had recognised a degree of expertise in dealing with autism/Asperger's. As the Tribunal pointed out, they had to take a lot of Mr White's evidence "on trust". Who is to say that the Tribunal would have been quite so trusting if they had known not that the school was registered with the Society but that precisely the opposite was the case?
22. Turning to registration with the Department, it was initially submitted that this was simply irrelevant because the registration related to January 2003 and Mr White had given evidence that the nature of the school had changed dramatically. In my judgment that submission lacks force because it is plain that it was open to the school, if indeed its nature had changed dramatically so that it did have expertise in treating Asperger's, to ask the Department to update the register so that it referred to the school's newly acquired expertise. For whatever reason, that was not done.
23. Then it was submitted that registration was not relevant for a different reason in that, even though a school did not appear on the Department's register as catering for a particular need such as Asperger's, the school may well in fact have considerable expertise in addressing the causes for particular emotional and behavioural symptoms, be those causes Asperger's or any other condition. One would have hoped that any school would address the causes rather than merely the symptoms of any condition, and it may well be the case that considerable expertise can be acquired, but that does not gainsay the point that the register is at least a starting point. It was perfectly open to Mr White to explain that, while the school was registered with the Department as a school for children with emotional and behavioural difficulties, circumstances had changed since the registration and it had acquired expertise in Asperger's Syndrome.
24. The fact that registration, while only a starting point, is nevertheless a relevant consideration is confirmed by the authority cited by Mr Dunlop: Elison v Hampshire County Council, a decision of Tucker J dated 30th July 1999 CO/752/99. The case went to appeal but not on this particular point and the appeal was unsuccessful. The point to which Mr Dunlop drew my attention was the observation made by Tucker J on page 9 of the judgment:

"In my view the question of what school is appropriate is not necessarily determined by the designation of a particular school, although that is obviously a factor to be taken into account. If other or extra provisions can be made for a child's educational needs as recognised in the Statement, then a school may, despite certain initial apparent disadvantages be an appropriate school..."

The case was not directly concerned with registration with the Department but it does demonstrate that, while registration is not the be all and end all, it is "obviously a factor to be taken into account". It was not taken into account in the present case because, for whatever reason, Mr White did not inform the Tribunal that Brantridge School was simply registered in respect of emotional and behavioural difficulties.

25. Mr Dunlop submitted that registration did not in any event assist the appellant's case because JF does indeed have emotional and behavioural difficulties and the fact that they are caused by Asperger's does not mean that Brantridge would be inappropriate. This is largely a repetition of the earlier points and the answer is the same. The precise terms of registration with the Department or any other body cannot sensibly be regarded as the be all and end all but they are at least the starting point and as such are relevant. That is not to say that in each and every case it is necessary for details of registration to be provided.
26. This case is concerned with the particular evidence given by Mr White at the hearing before this Tribunal, where he is recorded as having told the Tribunal in terms that Brantridge was not a school for children with emotional and behavioural difficulties and that it was registered with the society. In that particular context it was obviously important that the Tribunal, in assessing the detailed evidence provided by Mr White, in deciding how much of it should be taken on trust, and in deciding how persuasive it was, should proceed from the correct starting point, namely that Brantridge was registered as a school for children with emotional and behavioural difficulties and was not registered with the Society. I find it somewhat surprising that this elementary point is still not appreciated by the first defendant: a public body, whose duty it was to assist the Tribunal. In truth, there is only one possible answer to the question: is there a realistic possibility that the information that Brantridge is registered with the Department as a school for children with emotional and behavioural difficulties and is not registered with the Society could have altered the Tribunal's conclusion that it was the appropriate school for JF. Of course it could. Whether this information will lead the Tribunal to a different conclusion will of course be for the Tribunal to decide.
27. For these reasons, this appeal must be allowed.
28. MR FRIEL: My Lord, the only appropriate relief I can ask for, apart from the issue of costs, is for the matter to be remitted for rehearing. Your Lordship has already indicated that.
29. MR JUSTICE SULLIVAN: Yes. It does not need to go to a different Tribunal because the error is not the Tribunal's in this case, is it?
30. MR FRIEL: No. I am not bothered about that, although it would be possibly quite difficult to put together the same Tribunal.
31. MR JUSTICE SULLIVAN: Yes, it might be, but it is not absolutely imperative that it is a different one. I mean, sometimes the Tribunal, for whatever reason --
32. MR FRIEL: It has to be a new one. What I would ask my Lord to put in the order therefore is an order for a fresh hearing to the same or a new Tribunal simply so that, if one member is unavailable for six months they do not -- because they do get very literal in the office, they do not wait six months for the one member to be available. Other than that --
33. MR JUSTICE SULLIVAN: Yes, if there is an order for a fresh hearing, leaving it open to whether it is a new one.
34. MR DUNLOP: Yes, as I understand it, a fresh hearing might be only possibly arranged within a month or possibly slightly more but it is likely that it will be differently constituted for the very reason my learned friend indicated: it is hard to get the same people together.
35. MR JUSTICE SULLIVAN: So effectively they start from scratch, unless the parties agree -- and it may well be the parties can agree a certain amount, but they would be starting from scratch.
36. MR DUNLOP: Yes.
37. MR JUSTICE SULLIVAN: Right. Then the appeal is allowed, the appellant's appeal is to be remitted to the Tribunal for a fresh hearing. I say nothing about whether it is the same or a different tribunal, that is a matter for the Tribunal's discretion.
38. MR FRIEL: My Lord, then there is the matter of costs. My Lord, the schedule is at page 430 to 431. Because the charity took the view that is was unfair on Mr and Mrs F to bear the risk of the final hearing, plus the risk of the defendant's costs, there is no insurance in this field available and a contingency fee agreement was offered and reached but it relates only to the final hearing as of 18th August from the establishment of the NAS and the Department. It would have been earlier if the matter had been listed earlier. The schedule reflects the date of the contingency fee agreement at page 431. I understand my opponent has some objection to some of the amounts claimed but overall accepts the principle that the costs should follow the event, if assessed.
39. MR JUSTICE SULLIVAN: Right, shall we just find out? Yes, Mr Dunlop?
40. MR DUNLOP: Indeed, that is right. I accept the principle that costs should follow the event and there are a few points I would like to make. I have guideline figures for summary assessment of costs in the Admin Court. I can pass up a copy, if that is helpful. (Handed)
41. The first outlined point that I would make is that, in my submission, the costs claimed are disproportionate. The total figure is just under £24,000. The Local Authority's cost schedule, I do not know if you have seen that, was going to be for just under around £2,000. So this is more than ten times what we were putting forward. Now, of course I accept that, as the applicants, they have more work to do but, nonetheless, I think the contrast is illuminating. Going to the specifics, the first point I would make is in relation to the hourly rate claimed by the fee earner. Now, as I understand it, my learned friend's instructing solicitors are based in Bury St Edmonds and, if one looks at the guidelines that I just passed up, the hourly rate, which is on page 2, for Bury is in the Band Two Grade and for a Grade A fee earner it should be £173, not 190 as claimed.
42. The second point, the second specific point, that I refer you to is -- I am afraid I do have to make the submission that no counsel likes making, which is that my learned friend's fees are beyond what would be necessary or reasonable for a case like this. You will see that, on the second page, the fee for advice on documents is £3,450 and the fee for the hearing is £4,400. Again, if one goes back the guidelines and turns to the last page, there are some suggested figures for counsel's fees in the Administrative Court and for a half day hearing -- I appreciate this has gone on beyond lunch but, in terms of the actual submissions, they were significantly less than half a day, but there the guidance for a junior of ten years call is 1,650. I wholeheartedly accept that my learned friend is an expert in this area and has considerable experience but, nonetheless, his brief fee is more than three times the suggested figure for a half-day hearing.
43. MR JUSTICE SULLIVAN: I thought this was a day's case, is it not? I mean, I know it has only taken half a day but if Mr Friel had had to go through all of his points it would have certainly taken a whole day. The fact that he had one very good point, which did not take too long to resolve, does not actually save you very much because --
44. MR DUNLOP: Well, indeed. My Lord, the figure of 1,650 is not necessarily what I would suggest but, even if one were to double it -- which in my submission is probably rather excessive -- but even if one were to double it, it would still be substantially less than what was being asked for for the hearing. Then one has the advice in addition, which is almost as much again and one would have thought that the advice, which would probably be very much the same grounds as the preparation for the hearing. So I would submit that those figures should be reduced. Those are the submissions I have in relation to costs.
45. MR JUSTICE SULLIVAN: My difficulty, I think, is this: you are right in saying this is a very substantial fee overall for a one day case but, on the other hand, there are various reasons in terms of digging around for evidence and so forth which would push the costs up by comparison with what you might say is a normal challenge to a statutory decision where, say you have just one point, they have misinterpreted some regulation or whatever it is and so you effectively put in the decision letter and your skeleton and say, "There you are, they have missed regulation 3", whatever they take to it. What I am wondering is, whilst one should normally try to summarily assess, I have the nasty feeling that it is going to be very rough justice for someone if I do try to summarily assess this and I do wonder whether the better thing to do is to send it off for detailed assessment if there is going to be any sort of extensive debate about how much time should have been spent and what costs per-hour and all that sort of thing. I mean, I do know there is a heck of a lot of hours, for example, as well, which may well be -- are undoubtedly a reflection, at least in part, of the need to dig about for information and so forth.
46. MR DUNLOP: That is why I was not taking points specifically on the number of hours, just on the rate and counsel's fees and counsel's fees, with the greatest of respect, do not -- the counsel is not involved in the digging around.
47. MR JUSTICE SULLIVAN: No, counsel is not involved in that.
48. MR DUNLOP: But my point is that, whilst one can appreciate why the hours might be higher because of the digging around, that does not explain the substantial counsel's fees, in my submission.
49. MR JUSTICE SULLIVAN: Yes. Mr Friel, you have heard my slight unease.
50. MR FRIEL: I heard your point. The difficulty in this appeal is what has now happened is that very few are eligible for Legal Aid. There is not a contingency fee with an insurance attached so what is happening is people are taking quite substantial risks and they have to believe it and, luckily, I think I have only lost one of these cases -- I did regret that -- but it places quite a burden on everybody. But it does mean they are going to run back to the Tribunal. Occasionally I have some very rich clients, it does happen, but it is very occasional. Most people need the money rather than wait for an assessment so it would be useful if it could be assessed but if it is impossible then one must face reality.
51. Can I make the basic point that the reason my fees are so large is, of course, the defendant chose to fight this knowing that there is a contingency agreement with a one hundred per cent uplift and Crane J considered this at the end of the trial and whether it was a sensible approach and found that it was because there is no insurance because of the risk element, which I think most judges would find to be exceptional in the field of our contingency fees because everybody else gets insurance and there is not the risk that your client goes off and pays somebody else's fees. I do think that Croydon's fee are unrealistically low, I have made the comment, for something in this field. Can I help on one my instructing solicitors raise?
52. MR JUSTICE SULLIVAN: I am sorry, you said Crane J considered the issue of the conditional uplift?
53. MR DUNLOP: I do not the transcript but it was Jones v Norfolk County Council but the contingency fee agreement between counsel and solicitors and between client and solicitors was wholly challenged as being invalid, as well as the uplift. Norfolk County Council did not succeed. So the reason why the fee is obviously much greater that normal: my normal fee has been doubled and it is a fee we recover normally on assessment and we do not put unrealistic fees in and I know I am not the most expensive in the market because I am very clear as to what some chambers would be putting in and, on that issue, the contingency fee agreement, of course, accounts for a substantial element of the uplift.
54. The other point made by my learned friend is my solicitor's rates. I can only point out that this is a specialised field and her rate in this field matches the cheapest. The average rate is above that and there are not very many specialists in this field. There are less than medical negligence, of which I think there are about 120. In this field there are less than about 35 who can call themselves specialists. So the rates for a specialist is not at all unreasonable at 190 a hour. It is the bottom end of the market.
55. MR JUSTICE SULLIVAN: And no point is going taken on the hours?
56. MR FRIEL: No point is taken on the hours. Your Lordship is right: to go to the Department and make inquiries of the NAS -- Ms Nettleton drafted the NAS witness statement to get this material so it is a great deal of time in digging. So far as my own efforts are concerned, I obviously asked her to do it and correct it, some of it, but it requires a deal of work on her behalf. Where we do not appear below, one needs to take instructions, draft witness statements and look at the documents. The work required, if you do not actually appear at the Tribunal, to actually see the case, put the evidence together, and advise whether it is realistic and then get it to a point at trial is going to be much greater than if you were below anyway and that accounts for slightly higher levels of work than one would normally see. The major boost to this -- I have used the word twice in this case -- is the fact that once you get 100 per cent uplift, one then takes it much greater.
57. My Lord, respectfully, because the point made is for a half-day case, the rate: I do not think it is appropriate to double 1,650, although I know some would. The rate we ask for is to double what we normally get on assessment, which is 2,200 for cases of this nature. This would have taken a day if it had to be argued on all the points. I believe it right to say -- your Lordship may think it is nonsense -- that we would have got home on more than one point on this case. But it does not matter whether that was so or not: it was listed for a day, it was shortened by concession and it has involved, if I may respectfully say so from our point of view, and I believe from the judgment's point of view, an important point as to how a Local Education Authority should approach defending the position when it discovered that the Tribunal was not fully apprised of the factual decision on the grounds at the time and that is a matter of some public importance in my respectful submission.
58. MR JUSTICE SULLIVAN: What do you want to say about -- I think it is Mr Dunlop's point -- about having got quite a reasonable of fee for advising and so forth then query whether such a substantive brief fee is justified after that. If it is swings and roundabouts, one should not have quite so much for advice. But, having put a heck of a lot of work into the advice and teed it all up, he does not quite say it is a matter of topping and tailing it, but that might be a way of putting it.
59. MR FRIEL: What he is really saying is we just have to run the car at the end. What happened was he served his skeleton argument without evidence to support it. Of course, I appreciate that, save that Mr White had disclosed, in fact, this situation on the ground. What we then had to do was get the evidence amended, pleadings to amend the skeleton argument quite substantially, so that is not correct. The case brought before the court is brought on the evidence that was before the Tribunal but also the evidence obtained afterwards, which includes the considerable tranche from the Department of Education, a considerable tranche with the National Autistic Society, additional evidence from Mrs Strudwick, who is a charitable executive and a representative, as well as Ms Nettleton's own witness statement, so I would respectfully say it is in fact not a case where one starts it, puts it together and runs the same skeleton argument at the end that you had at the beginning. The skeleton argument has been revised on three occasions. The first revision was not a major revision at the end but it was useful to revise it, frankly, because, when one did it in July, one was running a timetable for the 17th, the August information came on in the May timetable and, frankly, it needed a lot more work to get the right page references so that you were not lost in the bundle. It is also needed more reference to a couple of decisions which had come in subsequently: McCombe J on the basis of that Tribunal in the Hampshire case deciding that the child needed that provision. That provision was in the agreed order yet the Tribunal was not satisfied that the provision was there and said so, which would have been an issue had that point come about because of the order here.
60. I do not think I can assist by going on and I think I am going on so I hope I can assist by leaving it to my Lord.
61. MR JUSTICE SULLIVAN: Yes.
62. MR DUNLOP: Can I just come back on the running car point? Well, my learned friend correctly points out that there was an initial skeleton argument, then revised skeleton argument which contained substantial changes. Both of those took place before the conditional fee agreement was entered into and the later skeleton argument contained only really very minor additions. I went through it to check what the changes were and, as I was running down, references to three more cases and a couple of page references had actually been taken out. So I do stand by the point that, by the time the conditional fee agreement was entered into and the fee for hearing was presumably being agreed, the majority of the preparatory work had been done and it was the case of running the car, to borrow my learned friend's terminology.
63. MR JUSTICE SULLIVAN: Thank you very much.
64. I think the parties may have to accept a degree of rough justice in a summary assessment but I think it is better, having heard the submissions, to revise my initial inclination and go for detailed assessment to summarily assess. So, firstly, obviously the first defendant is to pay the claimant's costs. The costs are to summarily assessed. So far as the summary assessment is concerned, there have been two criticisms of the figures put forward: the hourly rate of the solicitor and counsel's brief fee.
65. So far as the hourly rate is concerned, I am not persuaded that that is unreasonable. There are broad guidelines. It is only marginally above the Band Two Grade Guideline and it is a specialist field and, frankly, I do not think £190 a hour, in this kind of specialist field, can sensibly be described as in any way unreasonable. There is not any challenge to the hours done at that rate, so it seems to me the extent of the challenge is limited to counsel's fees. There is no challenge to the 100 per cent conditional fee uplift as a principle, as opposed to the amount that should be uplifted. It is said that £4,400 is excessive, bearing in mind two factors: firstly guideline figures and, secondly, the fee that had already been charged for preparing the documents.
66. Dealing with those matters in turn, the guideline figures relate to a half day hearing. Whilst one would not necessarily goes as far as doubling for a full day hearing, it seems to me that this was properly put down as a one day hearing and, had matters been thrashed out in detail, it would have been a very busy one day hearing as well. So far as the point made in relation to the previous work that was done, there is a substantial amount included for advising in conference. I realise this was a moving target and one could not simply pick that up and run with it. There is, however, some force in that and it seems to me that the fairest thing I can do, even though Mr Friel may not feel it is completely fair, is to say that his fee for the hearing should be put in at £3,500 rather than 4,400 but that is the alteration I will make to it. There is also the 100 per cent uplift and so forth. But, on the information before me, 3,500 for a case of this weight and complexity and the amount of factual information involved is not in the least out of kilter with the guideline figures that are given for half day cases in the Administrative Court.
67. So that is your rough justice.
68. MR FRIEL: I just wanted to correct one thing. We were not claiming 23,896 with the 4,400 uplift in addition. It is the including the uplift and requires to be altered to say that.
69. MR JUSTICE SULLIVAN: But 3,500 --
70. MR FRIEL: I make no complaint because it is complicated. That is the only point, I make. My Lord, I take the view that one would have been done anyway with one of these cases, bluntly.
71. MR JUSTICE SULLIVAN: Right. Any more for any more? Other people can work out what the amounts are.
72. MR FRIEL: Fairly easy mathematics.