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 WC2A 2LL
		27th April 2007

1. MR JUSTICE STANLEY BURTON: In these proceedings Looe Fuels Limited, the claimant, seeks judicial review of a decision by Looe Harbour Commissioners, the defendant, in relation to a new fuel tank which has been installed at the quayside at Looe in Cornwall at a special meeting of the Harbour Commissioners, who are the statutory body in relation to the harbour, held on 3rd May 2006. The Commissioners decided that they themselves would operate the facility created by the installation of a new fuel tank, the object of which is the supply of fuel to those who use the harbour (when I say those, I refer to vessels rather than to land-based vehicles). Manifestly, if fuel is to be supplied by the Commissioners they will have to buy it and the challenge in these proceedings is as to the legality of their buying and selling such fuel.
2. There are other grounds for judicial review but the proceedings before me have, as a result of a direction given by Mr Kenneth Parker QC, sitting as a Deputy High Court Judge, been confined to one ground only, namely whether the buying and the supply, that is to say the selling of fuel from the fuel tank, is within the powers of the Commissioners.
3. As is well-known, Looe is an important fishing town in Cornwall. It is the homeport to about 47 fishing vessels, mainly relatively small vessels under ten metres in length. The boats range from trawlers and netters to handliners for mackerel, and the fleet employs about 120 fishermen. The Commissioners are a statutory body whose functions are set out in the statute which created them and certain other statutes and statutory provisions to which I shall refer shortly. The harbour area is today mainly used for fishing related industries including fish merchants and ancillary fishing support businesses. It is common ground that the maintenance and upkeep of the market and harbour are the responsibility of the Commissioners.
4. Looe Fuels is a company which has been in existence since 1988. Since its incorporation, it has dispensed fuel for vessels from a tank on the harbour and it was the lessee of the tank and no doubt the ground on which the tank was placed. In the course of time, the tank became unsatisfactory and had to be replaced. The circumstances in which it came to be replaced are the subject of the other grounds on which a judicial review is sought and I do not intend to refer to them. The short question I have to address, as I have already indicated, is whether the powers of the Commissioners include the buying and selling of fuel for vessels using Looe Harbour.
5. The Commissioners came to existence under the provisions of an Act of 1848, the long title of which is "An Act for Maintaining and Improving the Harbour of Looe, in the County of Cornwall, and for taking down the present Bridge between East and West Looe across the said Harbour, and Erecting a New Bridge instead thereof". The Act is a public act and is therefore to be construed on the principles applicable to such acts rather than to principles applicable to private Acts of Parliament. The recital of 1848 Act referred to "the proper maintenance and improvement of the Harbour of Looe" which "would promote the trade of the towns of East Looe and West Looe, and of the adjacent towns and districts, and would also be beneficial to the fisheries". The recital continued:

"... but the said Harbour cannot be effectually maintained and improved unless the same be placed under one management;"

6. Clause 2 incorporated in the Act the Commissioners Clauses Act 1847, the Lands Clauses Consolidation Act 1845 and the Harbours, Docks and Piers Clauses Act 1847. Clause 4 is as follows:

"And be it Enacted, That the Commissioners and their Successors to be appointed and qualified as hereinafter mentioned, shall be the Commissioners for improving and maintaining the Harbour herein mentioned, and for taking down the present Bridge and erecting a new Bridge, as by this Act authorised together with all proper approaches, works, and conveniences connected therewith, subject to the provisions contained in this Act and the Acts incorporated herewith."

7. Section 18 referred to the powers of the Commissioners. It is as follows:

"And whereas a plan of the said Harbour, and of the proposed Bridge, and also a book of reference thereto, containing the names of the owners, lessees, and occupiers, or reputed owners, lessees and occupiers, of the lands in or through which the same is intended to be made or pass, have been deposited with the Clerk of the Peace for the county of Cornwall; Be it Enacted, That subject to the provisions in this Act and the said recited Acts contained, it shall be lawful for the Commissioners to maintain and improve the said Harbour, and from time to time to scour, dredge, and deepen the said Harbour, in such manner as the Commissioners may think fit, and to erect, construct, and repair such groins embankments, break waters, sea walls, quays, wharfs, and other works of any description which they shall think necessary or desirable for the maintenance and improvement of the Harbour; and also to take down the present bridge across the said Harbour, and to erect and maintain a new Bridge across the same in the line or within the limits delineated in the said plans, with all proper works and conveniences connected therewith; and to enter upon, take, and use any lands described in the book of reference as shall be necessary for such purposes."

8. Section 29 provided for the payment of harbour dues to the Commissioners and section 30 authorised the Commissioners to demand rates for goods specified in Schedule (B) to the Act. Schedule (B) listed a very large number of kinds of goods from which I think is clear that the business of the harbour at the date of the Act was not confined to fishing. Schedule (B) includes all kinds of goods indeed including machinery and lead, leather, wine, various kinds of timber, glass, guano, amber and other goods.
9. Section 33 provided that all monies borrowed by the said Commissioners, and all rates, tolls and duties and other monies collected or received by them by virtue of the Act shall be applied, in the first place in connection with the expenses of obtaining the passing of the Act and payment of interest and:

"... in the third place in improving and maintaining the said Harbour and other works, and in scouring, dredging and deepening the same, and in erecting and maintaining the said new bridge, and otherwise in putting this Act into execution; and lastly, in reducing, paying off, and discharging the principal moneys due and owing by the said Commissioners, and to and for no other use or purpose whatsoever."

10. The Commissioners Clauses Act 1847, which as I have said was incorporated by the 1848 Act, contains numerous provisions dealing with the appointment of commissioners. Section 56 empowers commissioners to enter into contracts. It is as follows:

"The Commissioners may enter into contracts with any persons for the execution of any works directed or authorised by this and the special Act to be done by the Commissioners, or for furnishing materials, or for any other things necessary for the purposes of this or the special Act, and every such contract for the execution of any work shall be in writing, and shall specify the work to be done, and the materials to be furnished and the price to be paid for the same, and the time or times within which the work is to be completed, and the penalties to be suffered in case of the non-performance thereof..."

11. However, the section continues by authorising the Commissioners to enter into any contract orally if a contract between private persons could validly be entered into orally.
12. Section 57 relates to tenders for contracts and security from contractors but is limited to what were, at the time the Act was passed, very high value contracts, that is to say contracts to the amount of £100 or upwards, a figure which as a result of inflation has become relatively negligible.
13. The Harbour, Docks, and Piers Clauses Act 1847 in section 14 authorises the Commissioners to erect a watch-house and carry out other works for the purposes of custom house officers and other purposes connected with Her Majesty's Revenue and Customs. It is not suggested that that has any relevance to the issue I have to decide. More important are the provisions of the Looe Harbour Order 1920, made under the provisions of the Fisheries Harbour Act 1861 and having statutory force. Article 16 is as follows:

"The Commissioners may (so far as the rates specified in the schedule to this Order do not extend) demand and recover such rates or other consideration as they may think reasonable for the use of any warehouses sheds buildings yards weighing machines mooring posts cranes buoys works and conveniences belonging to or provided by the Commissioners or in respect of any services rendered by them in connexion with the landing shipping storage removal transport sale and disposal of goods animals fish and things."

14. That provision is central to the issue I have to decide.
15. On behalf of the claimant, Mr Coppel submitted that there was nothing in the 1848 Act which authorised the Commissioners to buy and sell fuel, whether for vessels or for anyone or anything else. He submitted that the business of the Commissioners is the improving and the maintenance of the harbour, and no doubt the bridge referred to in the original Act, and that it is neither incidental to that purpose nor necessary for that purpose for the Commissioners to be empowered to buy and to sell fuel. So far as article 16 of the 1920 Order is concerned, he submitted that clearly payment for fuel would not be a consideration for the use of "any warehouses sheds buildings yards weighing machines mooring posts cranes buoys works and conveniences". So far as the second part of article 16 is concerned, he said that any price charged for fuel would be a price for goods and therefore a consideration for the sale of goods and not a consideration paid in respect of any services. Moreover, he submitted, the sale of fuel would not be in connection with the specific matters listed in the second part of article 16.
16. For the Commissioners, Mr Hyams accepted that the original 1848 Act contains no express provision authorising the Commissioners to buy or to sell fuel. He pointed out that in 1848 the fuel that might be used on a vessel would not be oil; but by 1848, of course, there were coal steam powered vessels. There was no reference to the supply of coal or any other provisioning for vessels in the 1848 Act. However, he submitted that without fuel in modern times a vessel cannot move unless it be one of the relatively rare sailing vessels that are still in use. No fuel, no vessel. Therefore the continued use of the harbour requires the provisioning of fuel and the provision and supply of fuel is therefore incidental and may well be necessary to the principal purpose of the Commissioners, which is the harbour. There can be no harbour effectively without vessels. He accepted that, other than article 16 of the 1920 Order, there is no express power in any of the applicable statutory provisions which would authorise the purchase and resale of fuel by the Commissioners. The issues I have to decide therefore are first whether article 16 authorises the purchase and resale of fuel by the Commissioners and secondly, if not, whether that function is necessary or incidental to the statutory business and statutory function of the Commissioners.
17. Turning first to article 16, it is not suggested -- indeed it could not be suggested -- that the buying and selling of fuel could fall within the first branch of article 16. If it is within article 16 at all it must be within the second branch. So far as that is concerned, Mr Hyams relied on the word "shipping". So in relation to the words "any services" Mr Hyams submitted that those words are to be sensibly construed. The supply of fuel to vessels, that in the modern world means fuel for sale, should sensibly be regarded as a service. In my judgment, while the supply of goods incidental to the rendering of services within article 16 would doubtless be included in the statutory powers of the Commissioners, I doubt whether services rendered, and I emphasise the word "rendered" as well as the word "services", can be said to be or to include the supply of goods standing alone. In any event, however, the services, if they include the supply of fuel, must be in connection with the matters which follow in article 16. As I have said, the word "shipping" is relied upon; but that word does not stand alone. "Landing" "storage removal transport sale and disposal of goods animals fish and things" are clearly of those goods animals, fish and things. The word "storage", for example does not stand alone nor does the word "removal" nor does the word "landing". It is the landing of goods, animals, fish and things. So equally in my judgment must shipping be. In my judgment, shipping in article 16 is antithetical to landing, just as storage is antithetical to removal and transport and selling are associated with disposal. Article 16 refers to the shipping, in other words, of goods, animals, fish and things. Shipping is placing goods et cetera on board a vessel, whereas landing is removing goods et cetera from the vessel and placing them on land. The supply of fuel to enable vessels to sail is not incidental to or necessary to any of the functions referred to in the second part and in particular to shipping of goods et cetera.
18. It follows that the purchase and resale of fuel can be intra vires the commissioners only if it is within their implied powers. In my judgment, if it be right that the Commissioners can purchase and resell fuel then they could also trade as chandlers and sell provisions to vessels. When considering what are the implied powers of the Commissioners or any other statutory body, one of course must have regard to the terms of the enabling statute, and I would comment that the more specific is the enabling statue in granting powers, the less likely it is that additional significant powers were impliedly conferred. Yet if the Commissioners' submissions are correct, article 16 is a very partial conferment of powers notwithstanding its very specific terms and its limitations may effectively be disregarded.
19. I have been taken to a number of well-known authorities on the question of whether particular powers are incidental to or necessary for or consequential upon specific powers granted to a statutory body. Those authorities were helpfully summarised by Lord Templeman in Hazell v Hammersmith London Borough Council [1992] 2 AC 1 at page 29. He referred to the well-known authority of Attorney General v Great Eastern Railway Company [1885] 5 AC 473. Lord Blackburn in that case said at page 481:

"where there is an act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorise is to be taken to be prohibited..."

20. Lord Selborne, the Lord Chancellor, said at page 478 that the doctrine of ultra vires:

"ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires."

21. Lord Blackburn said at page 418:

"those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited."

22. It is with those principles in mind that I consider the question which arises in this case. In my judgment it would be wrong for the court to be unduly restrictive in determining what powers are incidental to or necessary for a statutory body to carry out its functions. The statute and the activities of the statutory body must be sensibly and practically considered; but one nonetheless must have regard to the statutory wording.
23. In that connection, I have been referred to the decision of the House of Lords in Trustees of the Harbour of Dundee v D & J Nicol [1915] AC 550 and to the speech of Lord Dunedin at page 561. The issue in that case was whether steamers acquired by a statutory body of harbour trustees who maintained a service of steamers for ferry traffic could be let out by them on hire for excursion trips beyond the ferry limits. Lord Dunedin on 561 emphasised that:

"'Incidental,' in my view, means incidental to the main purposes of the main business."

24. What therefore is the main business of the Commissioners? That, it is common ground, was established by and is to be found in the 1848 Act, and Mr Hyams emphasises the recital and the words "the proper maintenance and improvement of the Harbour of Looe ... would promote the trade of the towns of East Looe and West Looe, and of the adjacent towns and districts and would also be beneficial to the Fisheries."
25. The supply of fuel by the Commissioners, he said, would promote the trade of the towns of East Looe and West Looe and that is a relevant consideration. However, there are many things which would promote trade in those towns which would not be within the powers of the Commissioners. The Commissioners have no general power to promote the trade of the towns of East Looe and West Looe. It is clear in my judgment from not only the recitals but from section 18 of the Act and section 33 that their main business was and is the improving and maintenance of the harbour and other works, leaving aside the question of the bridge. That business does not involve the purchasing and reselling of fuel. It is not necessary for that business to be carried out and that function to be performed for the Commissioners to be able to buy and sell fuel to those who use the harbour. Nor in my judgment is that function incidental to the improvement or maintenance of the harbour. It may be incidental to improving the business of the harbour but that is a different function.
26. In these circumstances, I have come to the clear conclusion that the powers of the Commissioners do not include the buying and selling of fuel for vessels. I appreciate that the proceeds of such sales would be used only for carrying out their statutory functions but that is not a sufficient condition for the conferral or existence of such powers. Obviously any trading which results in a greater income than the expense of the activity may result in monies becoming available for the main statutory purpose. That is not the question. Article 16 is in specific terms. The main business of the Commissioners is as I have described. It follows that the trading on which they decided to embark is outside their powers. I add that the fact that until recently they have not in fact traded and have not found it necessary to trade in fuel or to supply fuel as it seems to me is by no means inconsistent with the conclusion I have arrived at on the proper interpretation of the applicable statutory provisions. In those circumstances I propose to grant a declaration in the terms which I have referred to, namely that the buying and selling of fuel for vessels is outwith the statutory powers of the Commissioners.
27. MR COPPEL: I am grateful, my Lord. What I propose is an order that the decision of 3rd May be quashed to the extent that that decision provide for the board to operate a new fuel facility, (1), and (2), for a declaration in the terms just mentioned by your Lordship.
28. MR JUSTICE STANLEY BURTON: Mr Hyams, do you want to say anything about that?
29. MR HYAMS: My Lord, there is no need to go as far as a quashing order. We are going to abide by the decision of course. There is no question in our mind.
30. MR JUSTICE STANLEY BURTON: Do you need a quashing order?
31. MR COPPEL: Do I need a quashing order, my Lord? Well, if my learned friend undertakes in the Court of Appeal to abide then I do not need a quashing order. No.
32. MR JUSTICE STANLEY BURTON: Well, he has confirmed they will not carry out an activity which I have held to be unlawful, unless the Court of Appeal takes a different view presumably. (pause)
33. MR HYAMS: My Lord, I am just being asked to clarify the precise wording. My understanding, and certainly the understanding of my instructing solicitor, is that it is the buying and selling of fuel that is unlawful.
34. MR COPPEL: My Lord, yes, the buying of selling of fuel which is unlawful.
35. MR JUSTICE STANLEY BURTON: You are happy with that?
36. MR COPPEL: Yes, my Lord.
37. MR HYAMS: Well, I am not going to give a personal undertaking, my Lord, but I can say there is no question of it being --
38. MR JUSTICE STANLEY BURTON: Well, if the Commissioners persist in carrying out an activity which I declared to be outwith their powers, no doubt there will be an application for injunctive relief or something.
39. MR COPPEL: Undoubtedly, my Lord.
40. MR JUSTICE STANLEY BURTON: Anything else?
41. MR COPPEL: Costs, my Lord. I ask that the defendant pay the claimant's cost and ask for those costs to be summarily assessed.
42. MR JUSTICE STANLEY BURTON: I have seen somewhere a schedule, have I not?
43. MR COPPEL: I have a spare, if your Lordship needs it.
44. MR JUSTICE STANLEY BURTON: No, it is one of the rare occasions when I have not lost it.
45. MR HYAMS: My Lord, we got this only late last night so we have not had our 24 hours. My instructing solicitor was delayed on the train on the way here and I was very busy over lunch. Do you mind if I have five minutes to take instructions?
46. MR JUSTICE STANLEY BURTON: Not at all.
47. MR COPPEL: My Lord, I understand. But of course I do not mind if my learned friend takes instructions providing we can, as I say, get on with it.
48. MR JUSTICE STANLEY BURTON: Is it really five minutes?
49. MR HYAMS: Five to ten. Ten may be too much. Well, I would like five, my Lord.
50. MR JUSTICE STANLEY BURTON: I am not putting pressure on you. I just want to know what it is.
51. MR HYAMS: Five.
52. MR JUSTICE STANLEY BURTON: Really?
53. MR HYAMS: I think so my Lord.
54. MR JUSTICE STANLEY BURTON: You can have ten.
55. MR HYAMS: I am grateful. I am more comfortable with that. Thank you.
56. (A Short Break)
56. MR COPPEL: My Lord, we have not been able to agree figures. Can I just start by saying this: first of all my learned friend accepts that a costs order should be made against the Commissioners. The next question is should those costs be summarily assessed, to which the answer, we say, is yes. The matter has taken less than a day. As is the way, that ought to be the norm. It is of course helpful, expeditious and cheap for the costs to be summarily assessed. My learned friend's difficulty, as I understand it, is that he says that the costs we have sought include the fact that the claim form deals with the other four grounds, which undoubtedly it does my Lord, but the fact is that your Lordship having decided this point, the rest of the dispute falls away and in the ordinary course of things there is no way in the world, of course, that it could have been divided out in the documentation itself or indeed if the matter had all been rolled up as one, unless, as it were, it was found that the other grounds were hopeless then the claimant --
57. MR JUSTICE STANLEY BURTON: If I were making an issues order, there would be no order for costs in those issues.
58. MR COPPEL: Yes, my Lord, if those were bad issues on our part.
59. MR JUSTICE STANLEY BURTON: No, one could simply say whether they are arguable. I do not know who would have won yet. Let us assume you had reached agreement and the only issue were costs. The principle is that, unless it is absolutely obvious who would have won, you make no order for costs.
60. MR COPPEL: We say that in relation to those issues we have cleared the arguability threshold. All we have done is drawn up the claim form and put the baseline evidence in support of that claim form. Nothing further has been done and what we say the correct order actually is -- the majority of costs have been devoted to this first issue -- is for your Lordship to summarily assess the costs. If my learned friend can point to things which are truly unviable that were made in the claim form then it is for him to identify those but we say in truth it is impossible to disentangle and say that some part of the costs which we have sought are devoted to matters which were not part of this first ground and that would be the test, given that Looe Fuels has been successful on the first issue.
61. MR JUSTICE STANLEY BURTON: Let me hear what Mr Hyams has to say.
62. MR HYAMS: What we say is that, if you look at this schedule, it deals with an awful lot of things. One obvious element which we say is inappropriate is at the top of page 3. It refers to the witness statement whereas if you look at the witness statement which you have in the bundle before you today, it merely proves the facts as stated in the claim form and the statement of grounds. What we say is that this was a discrete point of statutory construction.
63. MR JUSTICE STANLEY BURTON: My present view is that the claimant is entitled to its costs of today, incidental to today, skeleton and so on, preparing for today, bundles, but if I had figures I would make no order for costs in relation to the other grounds.
64. MR HYAMS: I am grateful. That is precisely what I would say.
65. MR JUSTICE STANLEY BURTON: But then what do I do?
66. MR HYAMS: The question is how you would disentangle these costs. I would agree with your Lordship. I cannot see how that would be done.
67. MR JUSTICE STANLEY BURTON: I could either send it for detailed assessment, which is going to be expensive for everybody, unless you agree, or I could take a stab at it.
68. MR HYAMS: I would be happy if the stab was a realistic one.
69. MR JUSTICE STANLEY BURTON: Of course. You would be happy with one thousand pounds. I understand that.
70. MR HYAMS: No, I mean -- if my learned friend can identify the costs that your Lordship has identified perhaps I can then respond.
71. MR JUSTICE STANLEY BURTON: I do not think he is in a position to do that.
72. MR COPPEL: My learned friend points to the witness statement. I see the point he makes in relation to that. I understand but if we go through the balance of the exercises, the instructions to counsel were going to be there in any event. The attendances on the court, the attendances on counsel, were going to be there whether there was one issue or five issues. So too drafting of the claim form. It was going to involve a description of the background to the dispute and what the matter was and then, when we come to disbursements, those are all going to be identical because I was going to have to be here both today and at the commission hearing and so were those who needed to come up from Cornwall to be here. My Lord, apart from the item my learned friend has discussed at the top of page 3, it is difficult to see what comes out.
73. MR JUSTICE STANLEY BURTON: Well, Mr Hyams, what do you say? You have spoke in terms of generalisation.
74. MR HYAMS: Well, my Lord, if I had to put a figure on it, my Lord, I would say that the maximum you should award in respect of today and in respect of those matters which you refer to is £10,000.
75. MR JUSTICE STANLEY BURTON: Ten?
76. MR HYAMS: If you look, for example, my Lord, there are attendances on the defendant, 713, of a number of hours. Attendances on the claimant, 8.1 hours. That has to be to do with surely the factual matters. The reality is that this was a short point of statutory construction.
77. MR JUSTICE STANLEY BURTON: What are you asking me to do? I am not going to say £10,000. Are you asking me to make an order for detailed assessment?
78. MR HYAMS: I think we are going to have to. I think we have no choice, my Lord. So long as you specify specifically what you think is it they are going to get, which you have already done. I think we are going to have to go for that.
79. MR COPPEL: My Lord, can I press it? We say -- your Lordship knows both the Commissioners and the claimant are small bodies, small entities, and it is in everyone's, both party's, interests for this matter to be resolved and be resolved now. Yes, it is hit and miss. It is hit and miss also when one goes to a taxing master.
80. MR JUSTICE STANLEY BURTON: It is much less hit and miss but it is expensive and it may cost you more than this £20,000. Well, it will cost you £10,000.
81. All right, does anyone else want to say anything? I am going to summarily assess the costs.
82. MR HYAMS: I personally would like to know rather more than is indicated on this schedule, my Lord. I do not think that the defendant has been given a fair chance to respond. This schedule is unhelpful. Bearing in mind what your Lordship has said about the scope of the costs that your Lordship is willing to order, I say that it would be best for a new schedule to be drawn up in the light of what your Lordship has said, for the parties to seek to agree the costs and only if necessary should there then be an order for assessment, a conditional order for assessment. Alternatively, my Lord, it could be done on the basis of written submissions to your Lordship.
83. MR COPPEL: My Lord, if we just look at it. My learned friend says it is very unhelpful. Look at page 4. We see all the items on the first half relate to today's hearing. There can be no issue about that.
84. MR JUSTICE STANLEY BURTON: Sorry, which page?
85. MR COPPEL: Page 4. There can be no issue about any of those items. Preparing a statement of costs, no issue about that. Disbursements, which is a large item, there can be no issue about that. They were going to be incurred whether one had one, two, three, four or five issues. There is nothing on the other page, page 5, that is just VAT. Returning to the first page, there is attendances both from the claimant and on the defendant. Some of those were undoubtedly going to be required. The majority of those we say. Over the page, attendances on the court and this is the conventional form in which these summary assessments, documents, are prepared. Again, they were going to be required in any event, so too the attendances on counsel. Then there is work on documents, which is a limited figure. We see on the second half of page 2, for example, the grounds of claim. Counsel's advice, £17.50. The bundle was going to have to be prepared. Then over the page, and this -- my Lord, page 3 -- the best point my learned friend has, the witness statement, we accept that. It is £1,400. It is typical of services going to be there. Working on skeleton arguments by solicitors was going to be there. A certain amount of research: £25 for evidence, that may be a point in my learned friend's favour, and then other side's outline argument was going to be there in any event and various attendances and then we are over the page to 27th April. My Lord it is not an unhelpful document. It is in the conventional form.
86. MR JUSTICE STANLEY BURTON: Well, I am going to do my best with it.
87. MR COPPEL: I am grateful, my Lord.
88. MR HYAMS: OK, my Lord. I am being asked to make the point, my Lord, and in my submission it is a good one, there is an awful lot of duplication here, one solicitor, two solicitor, an awful lot of that my Lord. I am not quite sure why there are two lots of counsel's fees.
89. MR JUSTICE STANLEY BURTON: Anything else you want to say?
90. MR HYAMS: I do ask your Lordship --
91. MR JUSTICE STANLEY BURTON: You ask me to go as low as possible and Mr Coppel asks me to go as high as possible. Is that not right?
92. MR HYAMS: Sort of.
93. MR JUSTICE STANLEY BURTON: It is accepted by Mr Hyams that the order for costs is appropriate. He submits that the defendant should be ordered only to pay those costs attributable to the issue on which the claimant has succeeded, there being other issues on which indubitably costs have been incurred. Mr Coppel submits, I think, that he having won the proceedings the claimant should obtain an order for all their costs. In my judgment, that is not appropriate. The claimant has succeeded on a distinct ground which is unconnected with the facts which inevitably had to be entered into for the purposes of the other grounds. No doubt it was the circumstances of the decision of the defendant which led to those proceedings but the rights and wrong in any moral sense of that decision is not something that I have addressed. It remains undecided.
94. There is the difficulty that the schedule which is before me is a schedule which is comprehensive and does not divide up costs as between issues. I appreciate that that can be difficult in that there will be, for instance, one single counsel's fee for drafting a claim form and for considering the case and the counsel's fee will not have been divided up. I have had regard to the number of hours I see here and I have to take a stab at what would be an appropriate order, having regard to the fact that in my judgment it is appropriate for there to be no order for costs in relation to the issues which have not been determined, it not being obvious who would have won in any or all of those issues and it is not suggested that it is. So what I propose to do is to make an order for costs which, so far as is possible, and it is going to be very rough and ready, will be based on the principles I have referred to but will avoid the parties having to go to expense of a detailed assessment or even a detailed analysis of their costs for the purposes of that detailed assessment before they can reach a sensible agreement.
95. The figure that I have arrived at is one of £17,750 including VAT and I assess the costs in that figure.
96. MR HYAMS: Did you say including VAT?
97. MR JUSTICE STANLEY BURTON: Including VAT. Thank you.