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
		4 July 2007

1. MR JUSTICE BEATSON: This is an appeal by the Council for the Regulation of Health Care Professionals (now known as the Council for Health Care Regulatory Excellence) under section 29(4) of the National Health Service Reform and Health Care Professionals Act 2002. The appeal is against a decision of the Professional Conduct Committee of the Nursing and Midwifery Council concerning Ms Kingdom, a registered nurse, who at the relevant time was working at the Great Ormond Street Children's Hospital.
2. The charges brought against Ms Kingdom in 2003 concerned false documentation regarding her qualifications. They are set out at length in the charge, but can usefully be summarised from the skeleton argument of Mr Chamberlain, who appeared on behalf of the Council in this appeal. The charges relate to a letter Ms Kingdom she had shown her line manager concerning a course taken at South Bank University on "Special and Intensive Care of the Newborn". The first charge was that she produced a result letter showing that she had passed a unit from the course on "Special and Intensive Care of a Newborn" when she had not. The second charge was that she told her line manager she had passed the unit when she had not. The third charge was that she produced false documentation regarding her qualifications to a member of staff at South Bank University.
3. The facts giving rise to the charges are set out in the Council's statement before the Professional Conduct Committee, which took place on 6 July 2006. Ms Kingdom began working at the hospital in May 2000 and started the course in 2001. The course consisted of four units. She passed three of them on her first attempt, but failed the unit on "Physiological Basis of Care", a non-clinical unit. She was permitted to resit the unit. In a letter dated 17 August 2001, the Chair of the Examination Board informed her of this. The letter stated that, as she had been referred in this subject, she would have to resit the exam, and referred work could only carry a pass mark of 40 per cent.
4. In January 2003 Miss Singer, Ms Kingdom's ward manager, received an anonymous e-mail informing her that two members of staff had failed the course. Ms Kingdom had already told Miss Singer that she had scraped through it after a resit. Miss Singer asked all staff to confirm that they had passed the course. Ms Kingdom produced letters on university note paper purporting to show that she had passed all four units. One of the letters, dated 17 October 2001, purported to show that she had received the mark of 45 per cent in the unit of "Physiological Basis of Care". That letter also stated that the Examination Board had met on 14 October 2001. In fact, the Board had met, according to a copy of the letter on the university's records, on 17 October. The letter Ms Kingdom produced purported to be the original of the letter concerning the unit in question, and suspicions were aroused.
5. At the start of the hearing, the facts of each charge as set out were admitted by Ms Kingdom and found proved by the Committee. The Committee heard evidence for a further two days as to the circumstances in which the conduct had been committed. They were entitled to do so under the rules.
6. At the hearing evidence was given about the course by Miss Singer. She stated that it was one which Ms Kingdom would need in order to progress up the career structure. She stated that, after Ms Kingdom had told her that she passed the course, steps had been taken to start developing Ms Kingdom to take on more responsibility within the unit.
7. As well as hearing evidence about the importance of this qualification for a nurse's ability to get promotion, the Committee also heard evidence about the nature of the document shown to Miss Singer and to a university official. The evidence was given by Anne Garvey, the deputy dean of South Bank University. She said that the university did not believe the letter that she had shown the hospital could have been generated in the university's system. She thought the letter had been forged because the paper was different, and the logo on the paper was different in colour and appearance. Moreover, the document looked brand new whereas it was purported to have been written in 2001. She also referred to the fact that the letter stated a pass mark of 45 per cent which was not possible, and gave the wrong day for the Examine Board meeting. She said that she had asked Ms Kingdom for the letter, but Ms Kingdom had refused to let her keep it.
8. At the end of the hearing, the legal adviser to the Committee raised the fact that, whereas much of the evidence went to the issue of Ms Kingdom's dishonesty and whether she was dishonest in what she had done with the document, the charge did not specify dishonesty. The charge alleged misconduct by Ms Kingdom in producing a false document, advising Miss Singer that she had passed the unit, and producing the document to Miss Garvey.
9. Ms Kingdom's representative had earlier accepted that dishonesty was before the Council, and that the factual background would be integral to whether or not misconduct took place because it is an allegation of dishonesty. In the light of the advice of its legal assessor, the Committee decided that it was not appropriate for it to consider whether Miss Kingdom had been dishonest because dishonesty had not been expressly alleged. The Committee remarked that:

"We should add that we regret that we have felt obliged to reach this decision. Much of the evidence which was given in this case related to the alleged dishonesty of the Registrant, but this did not form part of the charges. We were not therefore able to fully explore the issues of the Registrant's alleged dishonesty."

Having so directed itself, the Committee made no finding of misconduct in relation to any of the charges.

10. The Council, the appellant in these proceedings, was established under the 2002 Act to oversee primary health regulators such as the Nursing and Midwifery Council. One of its functions is to bring cases in which there has been undue lenience, either in the charge or in the penalty, to the attention of this court in order to ensure the protection of the public.
11. The Council's power to refer disciplinary cases to this court is contained in section 29 of the 2002 Act. Section 29(1)(c) applies to directions as to fitness to practise by what is now called a Fitness to Practise Panel. Section 29(1)(i) applies the provisions of section 29 to corresponding measures taken in relation to a nurse or midwife. Section 29(2) applies to decisions not to take any disciplinary measure, and section 29(2)(b), applying that to decisions in relation to nurses or midwives.
12. The key provision is in section 29(4). This provides:

"(4) If the Council considers that-

(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or

(b) a relevant decision falling within subsection (2) should not have been made

and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court."

The relevant court is the High Court, and cases brought pursuant to section 29 are brought to the Administrative Court.

13. By section 29(7):

"(7) If the Council does so refer a case-

(a) the case is to be treated by the court to which it has been referred as an appeal by the Council against the relevant decision (even though the Council was not a party to the proceedings resulting in the relevant decision), and

(b) the body which made the relevant decision is to be a respondent."

In the present case, the first respondent is the Nursing and Midwifery Council, who is represented in court by Miss Strickland. The Council do not oppose the relief sought, and Miss Strickland was here to assist the court by her presence.

14. By section 29(8):

"(8) The court may-

(a) dismiss the appeal,

(b) allow the appeal and quash the relevant decision,

(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or

(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court..."

It is the power under section 29(8)(d) which the appellant invites the court to exercise.

15. The rules governing hearings before Professional Conduct Committees of the Nursing and Midwifery Council are contained in the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993; Approval Order 1998 (SI 1993/893). The key provisions for present purposes are Regulation 14, entitled "Postponement or Cancellation of the Hearing". Regulation 14(3) provides:

"Where before the hearing begins it appears to the chairman of the Conduct Committee, or at any stage during the hearing it appears to the Conduct Committee, that a Notice of Inquiry is defective, she or it shall cause the Notice to be amended unless it appears that the required amendment cannot be made without injustice, or if she or it considers that the circumstances in which an amendment is made so require, she or it may direct that the hearing shall be postponed or shall not take place."

16. The reference to a Notice of Inquiry is a reference to what are in effect the charges. The way a matter comes before the Committee is set out in Rules 8 to 13 of the Regulations. First, there is initial consideration by a Preliminary Proceedings Committee. If it is decided that the matter shall go forward, notice of the proceedings and statements are sent to the relevant practitioner, and a response requested: see Rule 9. By Rule 13, where a case has been referred by the Preliminary Proceedings Committee to the Conduct Committee, the registrar shall send to the respondent a notice in writing in a prescribed form specifying the nature and particulars of the charge and informing her of the date, time and place of the meeting of the Conduct Committee.
17. Regulations 15 to 19 concern the structure of the inquiry and hearing. Regulation 15 deals with the opening of the inquiry and reading of the charge. Regulation 16 prescribes a procedure to be followed in cases where a conviction is alleged. Regulation 17 prescribes the procedure to be followed regarding other allegations. The Rules, broadly speaking, set out a structure. They state that the following order of proceedings shall be observed in respect of proof of the charge or charges. First, the Chairman shall ask a respondent whether she admits the facts in the charge or charges, and if she does, the Chairman shall thereupon announce the facts have been proved. Where the respondent does not appear and has not admitted in writing the charges, the prosecutor shall open the case and adduce evidence. Where a respondent does not appear but admits in writing the charges, the Chairman shall announce the facts have been proved and invite a solicitor to address the Committee as to the circumstances leading to these facts in the charge or charges and the solicitor may call evidence.
18. Where evidence is adduced concerning any particular charge about which there has been no admission, the Committee shall record and announce a finding that the respondent is not guilty of misconduct in respect of the matters to which that charge relates.
19. Regulation 17(2) applies where the respondent appears and has admitted the facts. In such a case, the solicitor shall address the Committee as to the circumstances leading up to the facts in the charge or charges and may call evidence. The respondent or her representative then has a right of reply and may call evidence, and the solicitor shall have a further right of reply and may adduce evidence limited to matters raised by the respondent.
20. Regulation 17(3) sets out the procedure where a respondent appears but does not admit the facts. In such a case the facts against the respondent are presented. The respondent has the right to cross-examine any person giving evidence, and at the close of the case against her, to make submissions relating to any charges concerning which evidence has been adduced. It will be seen that the Regulations set out a detailed procedure and an order in which proceedings are to occur. Regulations 16 and 17 concern the facts. Regulation 18 concerns the procedure on proof of the facts in cases of alleged misconduct. It also sets out a procedure to be followed. In the present case, the appellant submits that the failure of the prosecuting regulatory body to charge dishonesty at the outset and of the Committee to consider and to exercise its powers under Regulation 14(3) to amend the charges to allege dishonesty is a serious procedural error justifying remission of this case to a differently constituted Committee, directing it to amend the charge or, alternatively, to consider whether to amend the charges.
21. The powers of this court and the approach of this court to a reference are considered in the decision of Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717 at 17. The Court of Appeal held that, where there has been a serious procedural or other irregularity in proceedings before the Disciplinary Tribunal, but the court is unable to decide whether a decision as to penalty was appropriate or not, or a decision as to the finding was appropriate or not, the court can allow the appeal and remit the case to the Disciplinary Tribunal with directions how to proceed.
22. Paragraph 73 of the judgment deals with the criteria for deciding whether a relevant decision was wrong and states that the task of the Tribunal is to consider whether the facts demonstrate that the practitioner has been guilty of the defined professional misconduct, and to impose a penalty that is appropriate. It then continues:

"The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession."

23. So the criteria of considering undue leniency are whether the decision has had due regard for the safety of the public and the reputation of the profession. The judgment deals with procedural shortcomings. Paragraphs 79 and 80 make an important difference between the role of the Tribunal and the role of a criminal court which follows an adversarial procedure with the judge playing a passive role.
24. Paragraph 80 states:

"The procedures for disciplinary proceedings under the various statutes referred to in section 29(1) of the Act are not identical. In general they involve a preliminary investigation of conduct of the practitioner of which complaint has been made. If it is decided to bring disciplinary proceedings, a charge will be proffered which alleges the facts relied upon as demonstrating professional misconduct ... The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it."

25. The judgment makes it clear that the whole process is to be examined and not just procedural decisions during the hearing. Mr Chamberlain also drew my attention to the decision in R(Council for the Regulation of Health Care Professionals) v GMC and Dr Rajeshwar [2005] EWHC 2973 (Admin) in which Sullivan J remitted a case to the Tribunal, where he accepted that the GMC had undercharged the second respondent. The respondent had been charged with conducting examinations that were not medically justified and conducting them inappropriately. The examinations were of the area of the patient's breasts. The undercharging was that it was not alleged that there was a sexual motivation for these inappropriate examinations. Sullivan J stated in paragraph 9 that, well before the date of the hearing, the GMC had received sufficient information in the form of witness statements to warrant the inclusion of an allegation of a sexual motivation in the charges, and he referred to the equivalent of Rule 14(3). He stated that he was satisfied that, whatever the evidential position may have been prior to the receipt of the two witness statements, once they had been obtained, any reasonable assessment of the totality of the evidence could have led to only one conclusion, that it was appropriate to allege a sexual and/or indecent motivation.
26. He concluded that the consequence of this procedural failure was that, while the court was not in a position to say that the penalty imposed by the Panel was unduly lenient, it was in a position to say that the penalty imposed would have been unduly lenient if the issue of improper motivation had been considered by the Panel and resolved against the doctor. It was on that basis that he remitted the case to the Panel. He referred to the decision in Ruscillo, and in particular to paragraph 72 to which I have quoted.
27. Mr Chamberlain's submission is a short one. He submits that, on the evidence available to the Nursing and Midwifery Council at the preliminary stages of the case, the only proper conclusion was to include a charge of dishonesty, and that the failure to do so was a serious procedural irregularity. He submits that that was so at that stage, and it was certainly so by the time the proceedings before the Committee opened.
28. Mr Wilton, on behalf of Ms Kingdom, contrasts the present case with Rajeshwar's case. He submits that in the present case there were no witness statements, and this court cannot say that at that early stage it was clear, as it had been in Rajeshwar's case, that the only correct procedure was to amend the charges. Mr Chamberlain responded that the evidence upon which he relied from the transcript of the hearing was largely evidence-in-chief. The Council would have had witness statements from the witnesses, and this court is able to see what evidence was adduced. It is clear from that evidence that, by the commencement of the hearing, the evidence was amply sufficient to require the prosecuting authority to include a charge of dishonesty. He also relied on the terms of Regulation 14(3) and the fact that it empowered an amendment to the charge "at any stage during the hearing". Mr Wilton submitted that, apart from the absence of clear evidence as to the position before the outset of the proceedings, the fact that Ms Kingdom admitted the facts alleged in the charges meant that thereafter the power to amend the charges could not be exercised without injustice. He submitted that once she admitted the facts, while further evidence might be led as to the circumstances leading up to the facts in the charge or charges, because there is no power to re-open the findings of fact or the facts that had been announced as proved, adding an allegation of dishonesty could not be done without injustice to her. He relied in particular on the very structured nature of the procedure laid down in the regulations. While initially submitting that there was jurisdictionally no power to order an amendment after the facts were found to be proved, as I have indicated, he accepted that while there might be power to do so given the width of the words "at any stage during the hearing" in Regulation 14. He submitted that it would often -- indeed inevitably -- be unfair to do so and that, in this case, the amendment could not be made without injustice.
29. In those circumstances, he submitted that this court could not be certain that an amendment would have been made, and it would therefore be wrong to remit the matter. He relies on the importance given in the cases of Singleton v Law Society [2005] EWHC 2915 and Salha v GMC [2003] UKPC 80 of showing in charges what sort of dishonesty is alleged. He submits that in the present case dishonesty was not alleged and it was not clear to Ms Kingdom what was being alleged. After the facts were found to have been proved, it was too late to amend the charge without unfairness.
30. Alternatively, he submitted that if the court concludes that the Committee would have and should have amended the charge, the court is not obliged to remit the case. He relied on the word "may" in section 29(8), and submitted that in the circumstances of this case, the matter should not be remitted. He primarily relied on delay. He also relied on the stage at which the question of amendment rose, the lack of clarity as to what the Council was alleging as far as the mental element, and the fact that Ms Kingdom had been denied the opportunity to prepare for the case in the full knowledge of what was alleged against her as far as her knowledge was concerned. He submitted that remitting would be a recipe for confusion. There was a real danger that the charge would be amended to suit the way the evidence had come out. There was a possibility of bringing the procedure into disrepute because of the potential for the proceedings to take a self-contradictory course. These submissions were made to show that the court should not regard any failure to consider amending the charges as serious procedure irregularity. In addition, he argued that if I did so regard this failure, it should be regarded as a matter which justified the exercise of discretion not to remit. In the context of the exercise of discretion, he also made the submission that the course in question was of a theoretical nature. He argued that Ms Kingdom's competence would not have been affected by the fact that she had not passed it even had she gone on to assume the further responsibilities which passing the course was designed to enable her to assume.
31. I have concluded that the failure to properly charge Ms Kingdom was a serious procedural error. As to the consequences, I bear in mind the judgment of the Court of Appeal as to the criteria of undue leniency, and have regard to the safety of the public and the reputation of the profession. I have concluded that if, applying Sullivan J's test in Rajeshwar's case, the issue of dishonesty had been on the charge sheet and been considered by the Committee and had been resolved against Ms Kingdom, the finding in this case that there had been no misconduct would undoubtedly have been unduly lenient.
32. I turn to Mr Wilton's submission that the stage at which this matter was considered was too late. I reject the submission that the Committee could not reconsider or amend the charge once the facts were proved. Mr Wilton accepted that they might be able to do this in respect of typographical errors, but not in respect of an important error such as the mens rea of the offence. One of the purposes of this jurisdiction is to deal with a perception that professional regulatory bodies may sometimes undercharge or impose lenient penalties. In the light of this, I do not consider that that is a proper interpretation of the statute and the rules. In any event, as Mr Chamberlain submitted, on that approach it was difficult to see how Sullivan J could have remitted the matter in Rajeshwar's case because although the procedure of irregularity arose before the hearing, nonetheless the hearing proceeded.
33. There is force in Mr Wilton's submission about the effect of delay, the inconvenience and the double jeopardy. However, as was said in Ruscillo's case and in other cases involving this jurisdiction, double jeopardy is in the nature of the procedure.
34. I finally turn to Mr Wilton's submission that in the exercise of my discretion under section 29(8) I should not remit this matter for the reasons set out in his skeleton argument, which I have summarised earlier in this judgment. He argued that the criteria to be applied by the court in deciding whether there has been undue leniency or there would have been undue leniency are criteria that take account of the safety of the public and the reputation of the profession. While there is discretion not to remit where a serious professional irregularity has been found, it is a discretion that should be exercised extremely sparingly.
35. In the present case the allegation is that a registered nurse used a forged document in support of her career advancement. It may be the case that her practical competence was not affected by the fact that she had not passed the non-clinical unit. The idea that a dishonest person, or a person against whom there is a serious prima facie case of dishonesty, is to be placed in a responsible position caring for ill and vulnerable people is, however, an extremely unattractive one. Dishonesty of this sort in relation to qualifications is a matter which does potentially affect the safety of the public. The issue is not whether this particular dishonesty affected the safety of those for whom Ms Kingdom happened to be caring. It is the implication of having a professional who has engaged in dishonesty in the course of the exercise of his or her profession continue in it without at least a finding of misconduct. I put it in that way, but as Mr Chamberlain fairly said, it is not the case that Ms Kingdom has been found to be dishonest. The issue is whether, on the material available to the Council, there was a serious prima facie case of dishonesty for her to answer.
36. In the exercise of my discretion I have considered whether remitting the matter is going to lead to a wholly different case being put against her and whether there is unfairness in this. However, in view of the fact that, as her representative admitted, the previous proceedings amounted to an allegation of dishonesty, I consider that that is not so. For these reasons, I allow this appeal and I remit the case to a differently constituted Committee with a direction that it amend the charges to include an allegation of dishonesty so that the matter can be considered afresh.
37. MR CHAMBERLAIN: My Lord, can I first say that, on behalf of the appellant and I am sure on behalf of the other counsel here, we are extremely grateful to your Lordship for sitting late.
38. MR JUSTICE BEATSON: Can I just say that there will have to be quite a lot of tidying up of the transcript.
39. MR CHAMBERLAIN: Yes.
40. MR JUSTICE BEATSON: Grammatically and in other ways. You understand the basis, I hope. Your notes of my decision may not be as helpful as they normally are to you.
41. MR CHAMBERLAIN: My Lord, that is entirely understood in the circumstances. Your Lordship has very helpfully outlined the order which needs to be made.
42. MR JUSTICE BEATSON: I was going to ask you, Mr Chamberlain, to draw it up.
43. MR CHAMBERLAIN: I thought your Lordship might say that. What I was going to suggest is that it would be perhaps sensible in the interests of all concerned if there were to be a direction that the amended charges be formulated and served prior to the PCC reconvening so that there can be no question when the Committee reconvenes that the appellant has had proper notice of the amended charges and knows exactly what she is facing.
44. MR JUSTICE BEATSON: Obviously I will hear Mr Wilton on that and on other things in a moment, but if that is so, there is also the question about the timing, and it may be that this is where Miss Strickland's silence ends. Mr Wilton has a point about delay and timing. These matters are stale. Is there any reason why everybody should not move fast?
45. MR CHAMBERLAIN: No reason at all, my Lord. We would certainly be very happy if the matter --
46. MR JUSTICE BEATSON: If in fact in the event that has happened Ms Kingdom has reason for not wanting it to press on -- but delay is put here and I respond to it in that way.
47. Right, well, let me hear what Mr Wilton has to say.
48. MR WILTON: My Lord, we have no objection to that. It seems sensible.
49. MR JUSTICE BEATSON: Can I leave it -- and I hope counsel will draw up an agreed order and I will initial it.
50. MR WILTON: My Lord, yes.
51. MR CHAMBERLAIN: My Lord, there is also an application for costs. My Lord, we have prepared a schedule, but I see the time and I wonder whether your Lordship might simply order detailed assessment. The way that --
52. MR JUSTICE BEATSON: What happens in these cases?
53. MR CHAMBERLAIN: Well, what has been agreed between the appellant and the first respondent is that the first respondent will be responsible, as I understand it, for the appellant's costs up to the point where the skeleton argument is produced.
54. MR JUSTICE BEATSON: Yes, I think I saw some correspondence about that.
55. MR CHAMBERLAIN: Once they see the skeleton argument, they then accept --
56. MR JUSTICE BEATSON: Up to the point where it is reasonable for them to put their hands up.
57. MR CHAMBERLAIN: Exactly. They accept that up to that point they bear the costs. My submission would be that, from that point onwards, the reason why this hearing has been necessitated is because Ms Kingdom has chosen to resist and so she should pay the remainder of the appellant's costs.
58. MR JUSTICE BEATSON: Let me hear Mr Wilton on that.
59. MR WILTON: My Lord, I have not quarrel with the first part of that.
60. MR JUSTICE BEATSON: I did not think you would.
61. MR WILTON: My Lord, so far as the second part is concerned, first of all we would say that it is in fact only on receipt of a letter dated 27 November of last year that those who instruct me knew that the first respondent was not going to oppose this appeal. As in the Rajeshwar case, from the point of view of the nurse, obviously it is highly important to know what the NMC is going to say before considering --
62. MR JUSTICE BEATSON: You would say that, in any event, before you knew that they were not going to resist, you should not be liable.
63. MR WILTON: My Lord, yes. So we would seek to finesse the matter in that way, which brings one --
64. MR JUSTICE BEATSON: There is then a black hole, is there, because did the Council let the appellants know that they were not going to resist before then?
65. MR WILTON: I think it must have been slightly before then. The letter I think was 13 November from the NMC to the appellant, and, as I say, we were informed of the letter on 27 November of the NMC's position.
66. MR JUSTICE BEATSON: I should not think the bulk of your costs were spent between those two dates.
67. MR WILTON: I doubt anything much was done between those two dates.
68. MR JUSTICE BEATSON: In the search of perfect justice, what is your submission?
69. MR WILTON: My Lord, first of all, insofar as we could be liable for costs, but only from the point of receipt of that letter, which must have been, I would suggest, at the end of November 2006. Secondly, we could only be liable for the appellant's costs. I do not know if the first respondent is going to seek costs from us, but we would submit it would only be the appellant's costs. But, my Lord, we submit that there are reasons why I would respectfully suggest we should only pay a proportion of the costs in this instance, and there are two reasons we rely upon. First, we do submit that the focus of the appeal has changed. We submit, on any fair reading of the skeleton argument, the appellant was making its stand in relation to the actual decision that was made by the PCC. It was not for instance an attack upon a failure to amend the charges at an earlier stage. My Lord, I appreciate that we lost even in relation to that, but nevertheless there was a change in the focus of the case, and that is material to the costs position. As I explained to your Lordship, we did not seek to dispute that --
70. MR JUSTICE BEATSON: That is your point first, and the second one?
71. MR WILTON: The second point, my Lord, is that one thing that my clients did get out of this appeal is the confirmation from the court that there is a discretion to consider whether or not to remit the matter. Now, that was in the second respondent's skeleton argument, that that was something that we wished to establish, and it only became clear in the course of the hearing that there was to be no argument about that.
72. MR JUSTICE BEATSON: Yes.
73. MR WILTON: So, my Lord, we would suggest that justice would be met by requiring my clients to perhaps pay a proportion of costs since 1 December last year, and I would suggest in the circumstances 50 per cent would be appropriate.
74. MR JUSTICE BEATSON: I am minded, Mr Chamberlain, to go a little way, but I was thinking of 90 per cent.
75. MR CHAMBERLAIN: Can I take instructions?
76. MR JUSTICE BEATSON: Yes. You better take instructions on the date as well.
77. MR CHAMBERLAIN: Yes, my Lord, your Lordship's suggestion finds favour with those behind me. As to the date --
78. MR JUSTICE BEATSON: 1 December is what Mr Wilton said. That is a week after the letter. Let us say the date of the letter. I think it is much cleaner to do it from the date of the letter.
79. MR CHAMBERLAIN: I think I would be very happy with that. The fact of the matter is nothing was done between those two dates. The skeleton argument had been put in. All we were doing was waiting to see what the other parties would say.
80. MR JUSTICE BEATSON: Just from the intellectual point of view, take 1 December, which is a date when nothing happened -- let us take the date that they were informed that the Council was not going to contest it. All the other cases that I have done of this sort we have not had very long hearings because of that.
81. MR CHAMBERLAIN: So that was 27 November.
82. MR WILTON: My Lord, I should have said that was a fax as well. So 27 November was when it arrived.
83. MR JUSTICE BEATSON: Good. Well, thank you all.