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
		15th May 2007

1. MR JUSTICE SULLIVAN: This is an application for a continuation of a without notice injunction granted by Holman J on 11th May 2007. The injunction restrains the defendant from publishing a final adjudication made on 4th May upholding a complaint that one of the claimant's television advertisements was misleading ("the adjudication"). The adjudication was communicated to the claimant by email on the afternoon of Friday 4th May, just before the beginning of the bank holiday weekend. The claimant was told that the report would be published on Wednesday 16th May. Prior to that date, the report would be made available to certain other parties, including journalists, but it would be made available only under an embargo.
2. Given the lateness of the hour, I do not propose to set out the statutory framework under which the defendant operates. The framework is set out in Mr Hunter's skeleton argument on behalf of the defendant. Suffice it to say that in regulating television advertisements the defendant acts under delegated authority from Ofcom, pursuant to a memorandum of understanding that has been agreed between the two bodies. The defendant has published guidelines for dealing with complaints about broadcast commercials.
3. For present purposes, two features of the complaints procedure as set out in the guidelines are of particular significance. First, the claimant is entitled to request an independent review of the adjudication from the Independent Reviewer, who is Sir John Caines KCB, a former Whitehall Permanent Secretary. The guidelines set out the procedure in respect of requests for an Independent Review of adjudications. They set out, for example, how requests for a review should be made, who can make a request for a review, and they also set out the grounds. Paragraph 47 of the guidelines explains:

"There are two grounds on which such a request can be made:

• where additional relevant evidence which was available at the

time, or shortly after, the commercial appeared but could not reasonably have been submitted then, becomes available and

• where it is alleged that there is a substantial flaw in Council's

adjudication or in the process by which that adjudication was made."

Paragraph 48 of the guidelines says:

"No review will proceed if the point at issue is the subject of simultaneous or contemplated legal action between anyone directly involved. Requests for a review should make plain that no such action is underway or is contemplated."

4. Secondly, adjudications are published on the defendant's website. Paragraph 38 of the guidelines explains:

"The ASA will normally publish adjudications on the ASA website [reference given] within 14 days of Council's decision. In exceptional circumstances, perhaps after the broadcaster or advertiser has requested a review (see paragraph 49), the ASA may agree to withdraw an adjudication before publication because the case needs more consideration, eg, there may be significant doubt about the accuracy or fairness of the adjudication or about the way the investigation was carried out. In such circumstances, the investigation executive will write to complainants and advertising parties to explain the postponement and ask them to keep confidential the adjudication and the status of the investigation until the final adjudication, in whatever form, is confirmed."

Paragraph 49 is in these terms:

"During the review process, the original adjudication (and any subsequent remedial action or sanctions) will normally stand. The ASA will not delay publication of the relevant adjudication pending the outcome of a review save in exceptional circumstances (on the authorisation of the ASA Director General)."

5. Following the bank holiday weekend, the claimant's solicitors wrote to the defendant on 8th May. Two letters were written on that day, one to Mr Phillips who was the official who was responsible for dealing with the complaint, and the second letter was addressed personally to the Director General of the defendant. The first of the two letters dated 8th May, that to Mr Phillips, acknowledged receipt of the email of 4th May, then stated that it was the claimant's intention to seek Independent Review and, if necessary, a judicial review of the ASA's adjudication. It asked for clarification as to whether the defendant considered it necessary for the claimant to pursue an application for Independent Review, given the guidance that Independent Review would not be applicable where there was an intention to apply to the court. Having explained that the claimants did not agree with the ASA's view, the letter went on to explain that the publication of the final adjudication was likely to have significant adverse consequence for the claimant's business. It was likely that the decision would be widely reported because the complaint implied that there was an element of deception and so there was a serious risk that the claimant's reputation and relationship with creditors would be significantly undermined. The letter said:

"For these reasons our client believes that in the absence of the agreement of the ASA to withhold publication it is appropriate for our client to make application to the court for an injunction to restrain publication pending determination of the review process. We are therefore writing to you, and separately to the Director General, to seek the agreement of the ASA to withhold publication of the adjudication until the review process is completed. If the ASA is not willing to agree then our client will make application to the court such application to take place before 14th May. It would be our client's intention to provide the ASA with as much notice as reasonably practicable in the circumstances. However, if an application to the court is necessary in the absence of agreement to withhold publication, inevitably our client would look to the ASA in respect of any costs incurred in connection with that application if successful."

The rather shorter letter to the Director General asked him:

" . . . for an immediate response (by close of business today at the latest) from your office or through the Executive whether, in the circumstances, the ASA is prepared to withhold publication so as to avoid the necessity for an application to the court."

6. That resulted in a prompt response from Mr Phillips on the 8th May, towards the end of the working day, saying:

"We hope to respond on the question of whether publication of the adjudication might be delayed by close of business tomorrow if possible. In the meantime, with regard to your question about whether to pursue Independent Review, we would encourage you to do so before seeking to involve the courts. The courts may in fact insist that the Independent Review procedure be followed first, on the basis that litigants seeking a judicial review should exhaust their 'domestic remedies' first.

We note that you are considering an application for an injunction to stay publication pending the outcome of the review process, but would draw your attention to the judgments in Vernons Organisation, Matthias Rath and Jamba's failed applications for injunctions against the ASA. We would also draw your attention to SmithKline Beecham's judicial review of the ASA in 2001, which was rejected in the High Court."

7. That prompted a response from the claimant's solicitors, in essence reiterating their position that if the defendant was not willing to withhold publication then there was no viable alternative than to pursue an injunction.
8. As promised, the substantive response to the letter of 8th May came in a letter from the defendant dated 9th May 2007. The letter was written by the Director General and said in part:

"You ask me whether publication of Council's adjudication would be stayed pending the outcome of any independent review. The position is set out in the ASA complaints procedure document for broadcast commercials at paragraph 49 [paragraph 49 is then set out]."

The letter continues:

"As far as I am aware, the review process has not even started yet since your client has not submitted a request for a review to the Independent Reviewer of ASAB adjudications, Sir John Caines. However, it cannot be the case that a lower threshold for delaying publication applies where a request for a review has still not been made. I therefore propose to apply the provisions of paragraph 49 and it is for me to consider whether exceptional circumstances have arisen. I do not believe that they have."

The letter then sets out in some detail why the Director General considered that there were no exceptional circumstances. Again, given the lateness of the hour I do not intend to read out all of those reasons. However, it is pertinent to note that, having set out his reasoning, the Director General continued:

"As far as the threat (made on several occasions including on 23rd April) of an application for an injunction to prevent publication is concerned, you will no doubt be aware of the decision of Laws J (as he then was) in R v Advertising Standards Authority ex parte Vernons Organisation Limited [1992] 1 WLR 1289, which was approved by David Lloyd Jones QC (sitting as a Deputy High Court Judge) in the context of broadcast advertising in Jamba GmbH v ASA [2005] in the following terms:

'The general principle is that the courts will not restrain the expression of an opinion or the conveyance of information whether by a private individual or public body, save on exceptional grounds, and that principle is not disengaged because an intended publication contains material which is subject to legal challenge. A public body would not normally be restrained from discharging its ordinary duties on that ground. That is particularly so where, as in the present case, the public body has a duty to protect the public. The judgment of Laws J was delivered in 1992, and his reasoning is all the more compelling today in the light of the effect of the Human Rights Act 1998.'

There are two further points which you may wish to discuss with your client before applying for an injunction. The first is the cost of such an application, including the potential for an adverse costs order against your client. The second is that, as para 48 of the ASAB procedures guidelines state 'No review will proceed if the point at issue is the subject of simultaneous or contemplated legal action between anyone directly involved'. It may well be that any legal action by your client will simply delay any consideration by the Independent Reviewer of any request by your client for a review of the ASAB's decision."

The concluding paragraph of the letter asks that further correspondence should be addressed to the claimant's solicitors, Messrs Addleshaw Goddard.

9. The claim for judicial review was issued on 11th May. The claim incorporated a detailed statement of grounds and facts relied on which extended to 40 pages. That detailed statement of facts and grounds was supported by an exhibit which contained 24 pages of correspondence between the parties and also included the draft decision and the final decision challenged. The application was supported by a witness statement of the claimant's chief executive officer, Mr Redmond, which was sworn on the 10th May 2007. Mr Redmond produced an exhibit, AR1, which extended to 98 pages in length.
10. Notwithstanding the volume of material that accompanied the claim, there was no mention of the two letters to which I have referred; that is to say the letter from the claimant's solicitors to the defendant on 8th May and the defendant's response letter of 9th May. Nor was the existence of those documents alluded to in the application for urgent consideration which was placed before Holman J. It is clear that Holman J was very troubled by the application. Although he granted injunctive relief which was to remain in force until 4 o'clock today, he said this in his reasons:

"These papers were placed before me at about 13.30 hours on Friday 11th May 2007. Since the proposed publication was notified to the claimant as relatively long ago as 4th May 2007, I cannot understand why an injunction was only applied for by documents first delivered to the court at, I believe, 12.15 hours today.

I am very doubtful indeed whether the claimant can prevent a public regulatory body from publishing its 'final' adjudication such as this; and it seems inconceivable to me that any substantive judicial review would not in any event be heard publicly, with attendant publicity.

However, I understand from their letter of 4th May 2007 that the ASA do not intend to publish before Wednesday 16th May and indeed ask the claimants themselves to 'treat it as confidential until then'. The balance of convenience favours preventing publication 'under embargo' to journalists for a short, but sufficient, time to enable the claimants to apply in court on Monday or Tuesday, 14th or 15th May, on notice (even if short notice) to the ASA for any longer injunction.

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I had drafted everything which appears above this line before there was delivered to me, at about 14.00, the faxed letter to the Administrative Court from Addleshaw Goddard dated 11th May and the enclosures therewith. I consider it a serious and potentially grave matter that the claimant did not supply to the court, and hence to me, a copy of the letter of 9th May 2007 from Christopher Graham, Director General of the ASA, to Taylors. That purports to have been sent 'By Post and Email' and if Taylors had received it before now, it was their very high duty of candour on a without notice application of this kind to send it at once to the court.

I have now considered the letter from Addleshaw Goddard and the enclosures. They largely fortify my above views. In all the circumstances, however, the above order will stand. If the claimants do apply for a further injunction I will expect them to explain to the judge why the letter of 9th May 2007 was not drawn to my attention by them, and he may consider that a ground for refusing further injunctive relief. For the avoidance of doubt, I have not given consideration to whether or not permission should be granted to apply for judicial review . . . "

11. The letter from Addleshaws explained that they had been notified at 12.30 on 11th May that the claimants would be seeking an injunction. They expressed concern that the papers that comprised the claim had omitted the defendant's letter of 9th May, and also that no reference had been made to the various authorities to which the defendant had referred. It enclosed copies of two of those cases: the decision of Laws J and the decision of Mr David Lloyd Jones QC (as he then was) sitting as a Deputy High Court Judge.
12. The application for a continuation of the injunction is now before me. In my view the application raises three principal issues. Firstly, is there a satisfactory explanation for the material non-disclosure when the application was made without notice to Holman J? Secondly, is the approach of Popplewell J in R v Advertising Standards Authority Limited ex parte Direct Line Financial Services Limited, 8th August 1997, [1997] EWHC Admin 770, on which the claimants rely, correct? Third, is it appropriate to grant permission to apply for judicial review given the existence of an alternative remedy, namely the ability to request an Independent Review from the Independent Reviewer?
13. In my judgment, the answer to all three of those questions is in the negative for the following reasons. Dealing firstly with the question of non-disclosure, I have set out the terms of the letters of 8th and 9th May. There can be no doubt that there was material non-disclosure. On behalf of the claimants, Mr Budworth in his skeleton argument seeks to explain that non-disclosure by reason of an oversight. It is said, firstly, that it really was not possible to give any serious attention to the matter until after the end of the bank holiday weekend, and I can readily accept that. So it was that matters were considered on 8th May. It is then said that the statement of grounds and affidavit were hurriedly drafted on 10th May and an attempt was made to present them to the Administrative Court Office and have them issued on that day, but that attempt failed and so the claimants renewed their efforts on the morning of Friday 11th. The documents were hurriedly assembled at the counter on that day and it was simply an oversight to fail to appreciate the significance of the letter of 9th May over and above the various other communications that were produced as part of the claimant's bundle. It is said that there was no deliberate intention to deceive, and indeed it was intended that the documents, and indeed the other authorities, would be brought to the judge's attention because the claimants had proceeded on the assumption that interim injunctive relief would not be granted on the papers but would be granted only after a hearing.
14. While I am prepared to accept, even though there has been no explanation in evidence, that there was not a deliberate intention to deceive, there was nevertheless a very serious failure to observe the duty of full disclosure that lies on any lawyer who is making an application for interim relief on a without notice basis. It is simply not good enough to say that highly relevant matters were not mentioned in very detailed grounds in support of the application and in the exhibits and/or in the witness statement, but were simply going to be drawn to the judge's attention during the course of oral argument. I find it quite extraordinary that the significance of the letters was not appreciated by those advising the claimant. I have set out the relevant parts of the letters. They were, after all, the correspondence in which the claimant was seeking the defendant's agreement to postpone publication of the adjudication and the letter in which the defendant expressly considered whether or not it was prepared to do that and explained why it was not prepared to do that. If only two letters could have been produced in relation to these proceedings then surely it would have been those two letters. Moreover, it is simply unacceptable in detailed grounds to mention the one authority which is in support of the claimant's position but to fail to mention a number of other authorities which specifically cast doubt on the correctness of that decision.
15. I have referred to the procedures which make provision for an application to be made to the Director General for publication to be postponed. Since the correspondence contains the Director General's decision in that respect, it was plainly material. The grounds do not attempt to address the lawfulness of the Director General's exercise of the discretion vested in him. They make no such attempt because the decision is simply not referred to in the application for permission to apply for judicial review. I therefore accept the submission of Mr Hunter that whether or not there was a deliberate intention to deceive the court is really of no consequence. The failure to make complete disclosure was so egregious that this injunction should be terminated on that ground alone.
16. I turn to the second question. The decision relied on by the claimants, that of Popplewell J, was concerned with an ex parte application to quash a decision by the Advertising Standards Authority upholding a complaint that the applicants in that case were in breach of the British Codes of Advertising and Sales Promotion, and an injunction to prevent the respondents from publishing their adjudication. Popplewell J considered the question whether or not injunctive relief should be granted. On page 6 of the transcript of the judgment he said this:

"The respondents have taken two discrete points. Firstly, in the light of Laws J's decision in R v Advertising Standards Authority Limited [1992] WLR 1289. A public body should not normally be restrained from discharging its ordinary duties of expressing opinions or conveying information, save on pressing grounds, which did not obtain in that case, and it is said do not obtain in the instant case . . . .

I turn to the first issue namely the decision of Laws J . . . The facts of that case are identical to the facts in the instant case. Laws J's conclusion was based on an analogy with those decisions, too well-known to need repetition, in libel law, that a court will not restrain publication of an article even where it is defamatory where a defendant says he intends to justify it. Laws J said this:

'Is there here a set of circumstances which disengages the general principle that the courts will not prevent the publication of opinion or the dissemination of information save on pressing grounds?'.

He went on:

'If a private individual will not be restrained from stressing his opinion save on pressing grounds I see no reason why a public body having a duty, other things being equal, to express its opinion should be subject to any less rigid rules. It seems to me that the case is, if anything, analogous to one where an administrative body has an adjudicative function and in the course of its duties publishes a ruling criticising some affected person and the ruling is later disturbed or reversed by an appropriate appellate process . . . .

I do not know of an instance in which a public body of that kind would fall to be restrained from carrying out what is no more nor less than its ordinary, but important, everyday duties simply upon the grounds that the intended publication contains material which is subject to legal challenge as being vitiated by some error of law.'"

Popplewell J continued:

"I do not find the analogy with the libel cases enormously helpful. It does not seem to me that reference, for instance, to the freedom of expression and the protection of human rights and fundamental freedoms has any relation to the instant case. This is not an expression of opinion and conveyance of information, save in the broadest sense. It is telling people the decision to which the respondents have come. The respondents are exercising a quasi judicial function, and the very word 'adjudication', while it is, of course, an expression of opinion, in the same way as a judgment is an expression of a judge's opinion, is quite different from what appears as somebody's view in a national newspaper. Therefore, with great respect to Laws J, I do not find his decision compelling."

17. Popplewell J then went on to consider the question of delay. During the course of his consideration of that issue, he said this:

"The true test, which is the balance of convenience test, must take into account that this is a public case, so that the public interest is involved, over and above the private considerations of an ordinary commercial case. Looking at the balance of convenience, I have to see where that lies."

Although Popplewell J there acknowledged the fact that he was dealing with a public law case where the public interest was involved, he does not appear to have further considered that aspect of the matter or to have placed that factor into the balance when considering where the balance of convenience lay.

18. Popplewell J's decision has not been followed in two cases. In R (on the application of Rath) v Advertising Standards Authority, CO/4041/2000, dated 6th December 2000, [2000] EWHC Admin 428, Turner J said this in paragraph 30:

"The claimants had relied on the decision of Popplewell J in Regina v Advertising Standards Authority Ltd ex parte Direct Line Financial Services Ltd . . . In that case, Popplewell J disagreed with an earlier decision of Laws J in Regina v Advertising Standards Authority ex parte Vernons Organisation . . . which was on all fours with the case before him. Both cases raised a question similar to the present. Popplewell J approached the matter as if the dispute between the parties existed in private law whereas Laws J considered that the matter properly lay in public law. It is probably undesirable that I should add any additional fuel to this judicial dispute. More than ever is this so since its resolution is not determinative of the present case. Having cautioned myself in this way, however, I feel constrained to add my piece. The whole basis of the claimants' application is that this is a public law matter. Indeed, the claimants much relied on the public law status of the first defendants as supporting their claim for prior restraint. In my judgment, it would be wrong for the court to apply a private law response to such a claim. That would be unjust to the first defendants as well as the public who have an expectation that a body the first defendants will publish its opinions in a manner and time that is appropriate. They should only be prevented from doing that on pressing grounds. None have been suggested in the present case. Unhesitatingly, do I support the approach of Laws J."

19. A similar approach was adopted by David Lloyd Jones QC (as he then was), sitting as a Deputy High Court Judge in R (on the application of J) v A, [2005] EWHC 2609 (Admin) . J is the only case which considers the position as it currently is under the procedures set out in the guidelines; namely where the Director General has a discretion to order that the publication of an adjudication should be postponed. In J the claimants were challenging the exercise of that discretion. The challenge was rejected by the learned deputy judge. He said in paragraph 23:

"In my judgment, the weight of these criticisms made of the adjudication are, in any event, of relatively limited significance. I say that, because there is a presumption that such a report should be published in the public interest and that it is only in exceptional circumstances that the ASA will be justified in withholding a report. That is so, notwithstanding the fact that there may be errors of law in the report which may be reversed on the review by the Independent Reviewer. In this regard I draw attention to the observations of Laws J (as he then was) in R v Advertising Standards Authority ex parte Vernons Organisation Ltd . . . "

20. Having rejected the challenge to the Director General's exercise of his discretion on the basis that it was not Wednesbury unreasonable, the learned deputy judge said this in paragraphs 35 and 36:

"In my view the correct approach is first to ask whether there is a serious issue that the Act in question is unlawful; and here, for the reasons I have already given, that is not the case. Beyond that, in the particular circumstances of this case, I consider that the correct approach is that adopted by Laws J (as he then was) in Vernons Organisation, to which I have already referred. There is something of a judicial dispute between Laws J and Popplewell J in his more recent judgment in R v Advertising Standards Authority ex parte Direct Line Financial Services Limited [1998] COD 20. To the extent that it might be appropriate for a deputy judge to join the debate, I unhesitatingly take the view that Laws J is correct. This is essentially a matter of public law and it must be addressed in public law terms. The general principle is that the courts will not restrain the expression of an opinion or the conveyance of information whether by private individual or a public body, save on exceptional grounds, and that principle is not disengaged because an intended publication contains material which is subject to legal challenge. A public body would not normally be restrained from discharging its ordinary duties on that ground. That is particularly so where, as in the present case, the public body has a duty to protect the public. The judgment of Laws J was delivered in 1992, and his reasoning is all the more compelling today in the light of the effect of the Human Rights Act 1998.

(36) I also consider that there is a compelling analogy here with the reasoning of Bonnard v Perryman [1891] 2 Ch 269 in the context of defamation. In any event, before an injunction would be granted it would be necessary for the court to consider what damage would be caused to the claimant. There has been no real attempt by the claimant to rely on damage to reputation or damage to the claimant in other ways. There is very little in the way of evidence which might support such a claim. Rather, the application has been made on the basis of the impact of the ruling on the industry generally. It seems to me that the interests of the industry and the public at large will be better served by an open debate on the adjudication at an early opportunity. In any event, the public policy considerations on which the defendant relies in this case are, to my mind, compelling and would be strong reasons against the grant of an injunction."

21. Like Turner J, I unhesitatingly prefer the reasoning of Laws J to that of Popplewell J. While the analogy with the libel cases may not be 'enormously helpful', to use the words of Popplewell J, that is because this is a case where a public body is discharging a quasi judicial function. If restraint of the expression of private opinions is justified only in exceptional circumstances, then the grounds for restraining publication of an adjudication by a public body exercising a quasi judicial function must be all the more compelling if they are to succeed. While it is correct that Popplewell J acknowledged that he was concerned with a public law case so that the public interest was involved, nowhere in his judgment is the very strong presumption that an adjudication will be published given any, let alone sufficient, weight. I endorse the observation of Mr Lloyd Jones QC (as he then was) that there would have to be exceptional grounds for preventing a public body from publishing an adjudication, and the mere fact that the adjudication was subject to legal challenge would not be a sufficient justification.
22. On behalf of the claimant, Mr Budworth submits that even if the approach of Laws J is adopted, there are exceptional circumstances in this case. He submits that this particular adjudication is likely to be newsworthy and widely reported in the national press. Because the claimant has been at the forefront of a drive for ethical standards and self-regulation in this particular field, it would be particularly susceptible to adverse media attention perhaps generated by its competitors who have been the subject of criticism from the claimant. The claimant is particularly vulnerable because its promotions have been built around a platform of ethical standards, and for good measure the claimant promptly withdrew the advertisement. Moreover, it is submitted that the grounds in the judicial review application are strong.
23. Although it is asserted that the claimant will suffer financial damage by reason of the effect on its commercial reputation, it is difficult to see how this case differs, save perhaps in matters of degree, from the ordinary case where a regulator responsible for regulating a particular area of activity publishes an adverse report in respect of the person or body who is subject to regulation. If the person who is the subject of an adverse adjudication contends that the adjudication is unlawful then it can say so. It can say that it does not accept the adjudication and proposes to appeal, either by way of internal review or appeal process, by way of statutory appeal or by judicial review, whichever is appropriate in the circumstances of the particular case. The mere fact that the person criticised is challenging the lawfulness of the decision cannot possibly be a proper ground for preventing a public body from doing its public duty and publishing an adjudication that it has made.
24. There would, in my judgment, have to be the most compelling reasons to prohibit a public body which has embarked on a quasi judicial task of that kind from publishing its decision. For example, there might be circumstances where there was persuasive evidence that the public body had engaged in vendetta against the person the subject of the adjudication, and the adjudication was prompted by a deliberate desire to inflict damage on the reputation of the person criticised. In my judgment, there would have to be extreme circumstances of that kind before the court would be prepared to intervene and grant injunctive relief. There are no such exceptional circumstances here. The challenge to the lawfulness of the decision is on conventional judicial review grounds. It is said there was a failure to take account of relevant considerations, that inadequate reasons were given, that the procedure adopted was unfair, and that the nature of the advertisement was misunderstood.
25. That leads me on to the final question: the availability of an alternative remedy. All of the complaints made about the adjudication and the process leading to the adjudication in this case are, in principle at least, within the ambit of the Independent Reviewer's powers. It is, of course, a matter for the Independent Reviewer whether or not he is prepared to undertake a review, but at least, on the face of it, there is nothing about the claimant's complaints which would suggest that judicial review is a more appropriate remedy than a review by the Independent Reviewer. It is in substance being alleged by the claimant that there is a substantial flaw in the Council's adjudication and there are substantial flaws in the process by which the adjudication was made. There are no grounds for believing that the Independent Reviewer would not be perfectly well able to consider those matters.
26. The defendant's annual report contains some information about the Independent Review process. It is worth citing two passages:

"The review process reinforces the self-regulatory system. Quite rightly the Reviewer is not able to override the decisions of the ASA Council Members. But he is able to get them to think again if he judges their decisions to have been unreasonable or to have been based on inadequate information about the issues or the result of a flaw in the investigation.

I was appointed as the first ever Independent Reviewer in 1999 [says Sir John Caines]. Since then I have received over 300 requests for the review of non-broadcast adjudications. About 20% of these have been either ineligible or subsequently withdrawn. In about 40% of the cases which I actually reviewed I concluded that the person making the request had raised issues which justified my asking the Council to think again. Those issues have been almost equally divided between flaws of substance and wording on the one hand and flaws of process and information on the other. In over 75% of the cases which I have sent back to the Council the original adjudication has been either reversed or reworded."

He then deals with the fall in the number of requests and specifically talks about reviews of adjudications about broadcasting advertising, saying that only one in five merited reference back to the Council and all broadcast cases referred back to the Council had resulted in some change to the original adjudication. Thus, it is plain that the Independent Review process is very far from being a rubber stamp of the defendant's decision.

27. Given the availability of this alternative remedy, I can see no justification for permitting this application for permission to apply for judicial review to proceed. Indeed, it would appear that the primary motive for bringing proceedings by way of judicial review was to obtain a postponement of the publication of the adjudication. In short, it is a blatant attempt to sidestep the complaints procedure, given that that procedure makes provision for the Director General to consider whether or not publication should be postponed in exceptional circumstances, which would include cases where an application had been made for an Independent Review and where the applicant had been able to demonstrate that there was reason to believe that the case really did require more consideration because of serious flaws. As I say, that issue has been addressed by the Director General and the claim form makes no reference to his decision, much less any reasoned criticism of it.
28. For those reasons, it is, in my judgment, plain that injunctive relief should not be continued, firstly, because there was inadequate disclosure, secondly, and perhaps more importantly, because this is not a case where it would be appropriate to restrain a public body from publishing its adjudication, and thirdly, because in any event the interim relief is parasitic upon the application for permission to apply for judicial review, and permission to apply for that should be refused because there is an equally effective alternative remedy by way of internal review. The injunction is therefore discharged and permission to apply for judicial review is refused.
29. At the outset of this hearing I declined an application to sit in private. It would be wholly wrong for the Administrative Court dealing with such matters to sit in private. I did make an order requiring the claimant to be anonymised for the duration of the hearing. In the light of my judgment, I remove that order and the claimant may now be referred to by its name, Debt Free Direct Limited.
30. MR HUNTER: My Lord, I am obliged. There are two matters that I wish to raise. First of all, it is simply to clarify exactly what the form of the order would be. As I wrote it down there would be four parts to it: the discharge of the existing injunction --
31. MR JUSTICE SULLIVAN: I think it has discharged itself, has it not? It was discharged 10 minutes ago.
32. MR HUNTER: Formally it ought to be discharged in light of my Lord's findings as to internal disclosure. Secondly, the refusal of the further application for an injunction.
33. MR JUSTICE SULLIVAN: Certainly.
34. MR HUNTER: Thirdly, the refusal of permission to apply for judicial review.
35. MR JUSTICE SULLIVAN: Yes.
36. MR HUNTER: Fourthly, the release of the order that my Lord made at the start of the proceedings in relation to anonymity.
37. MR JUSTICE SULLIVAN: Yes. Whether it is necessary to mention that in the order -- I think it is unnecessary probably. Those present heard it being made and heard it being removed, so it is as though it never happened.
38. MR HUNTER: My Lord, there is then the issue of costs. I have three submissions as to that. First of all is the submission that we ought to have our costs.
39. MR JUSTICE SULLIVAN: Yes.
40. MR HUNTER: Secondly, the court should order that our costs should be assessed on the indemnity basis. Thirdly, I would invite the court to engage in a summary assessment.
41. May I develop the application very briefly. The principles, such as they, are set out at pages 1168 and 1169 of Volume 1 of the White Book. There is not as much guidance as there used to be on indemnity costs. The position post-CPR is that the Court of Appeal encouraged courts to exercise a very wide discretion. Nonetheless, one paradigm example where indemnity costs are appropriate is where there has been unreasonable behaviour by a litigant. There are all sorts of examples of that; indeed, it is sufficient to not send a letter before action. What one has here is towards the very high end.
42. MR JUSTICE SULLIVAN: I will obviously hear what Mr Budworth has to say, but I do not think I need trouble you further.
43. MR BUDWORTH: My Lord, we will not oppose it, in the light of the comments that have been made.
44. MR HUNTER: In that case I then invite the court to engage in summary assessment on the indemnity basis.
45. MR JUSTICE SULLIVAN: Have the figures been supplied to Mr Budworth?
46. MR BUDWORTH: Yes, we have them. My Lord, notwithstanding the indemnity assessment and issues of doubt being resolved in the defendant's favour, there are perhaps one or two very brief observations on the schedule.
47. MR JUSTICE SULLIVAN: Right. Thank you.
48. MR HUNTER: Perhaps it would be easiest if I let Mr Budworth make those observations.
49. MR JUSTICE SULLIVAN: Yes.
50. MR BUDWORTH: My Lord, it is a very brief schedule and, as I say, notwithstanding the indemnity basis of assessment, one must nevertheless for a summary assessment which by its nature involves some broad brush looking at the schedule, one must see that in circumstances where the defendant was complaining that they were only made aware of this application yesterday, and in circumstances where they were aware of the presentation at court on Friday, they sent one letter in response. We now see that there are some 28 hours listed in total on page 1. It is not just that that is quite a -- well, a very high total, but also that the overwhelming majority of all of that work, all 28 hours more or less, has been done by the Grade A solicitor at the top rate and very little in fact done by the trainee assistant.
51. The only other observation is just a query as to whether or not the defendant is VAT registered in relation to the VAT which is claimed.
52. MR JUSTICE SULLIVAN: I think he worked his socks off, really, did he not, given the shortage of time that he had to deal with things in? That is what he would say, no doubt. He might put it slightly more forcefully.
53. MR BUDWORTH: I am not even sure there are 28 hours involved --
54. MR JUSTICE SULLIVAN: There are 28 hours if there is two of them doing it. They sent off the letter first of all and then they prepared things, and I think he did not get much sleep.
55. MR HUNTER: My Lord, that is precisely what I am being told. There are all sorts of things my instructing solicitors would like to say about their missing weekends. There are easily 28 hours of solicitor time since this matter --
56. MR JUSTICE SULLIVAN: There is no need to go into that. What is the point about that, Mr Budworth?
57. MR BUDWORTH: If they are VAT registered it need not be on the schedule because it would be reclaimed by the defendants in the ordinary course.
58. MR HUNTER: There is a short answer to that. They are not registered for VAT. They are not a trading entity.
59. MR JUSTICE SULLIVAN: Right.
60. MR HUNTER: I am asked to mention that in fact it is an under-estimate because the hearing has lasted longer than two hours.
61. MR JUSTICE SULLIVAN: I do not think I need trouble you further. I am satisfied there is no argument that in these circumstances the claimant ought to pay the defendant's costs. This is certainly a case for indemnity costs. That much is rightly conceded. I ought to summarily assess it, if I can. It seems to me that although the figure of £16,876.53 may appear high, inevitably if people have to do things at the last minute and in a great rush, that may well escalate the costs. It is probably thought, at least on the defendant's side, that that is scant compensation for lack of sleep and lost weekends. In my judgment, the amount of effort involved in responding to this claim, bearing in mind the extent to which the claimant, at least at the application stage, had put forward material and to the extent to which it was necessary for the defendant to supplement it to set out the position, is not at all unreasonable and so certainly on the indemnity basis the defendant has not displaced the presumption in favour, as it were, of the claimant's costs. So I award costs in that sum. Thank you.