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CO/7004/2003 
Neutral Citation Number: [2007] EWHC 1964 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Date: Friday, 27th July 2007
 
B E F O R E:

MR JUSTICE MITTING 
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THE QUEEN ON THE APPLICATION OF THE BRITISH UNION FOR THE ABOLITION OF VIVISECTION
Claimant

‑v‑ 

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant 
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Mr Richard Drabble QC and Mr Simon Cox (instructed by David Thomas, BUAV, 16a Crane Court, London N7 8NN) appeared on behalf of the Claimant
Mr Nigel Giffin QC and Mr Julian Milford (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
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J U D G M E N T 
1.	MR JUSTICE MITTING:  This case concerns the statutory regime for "the protection of animals (primates) used for experimental or other scientific purposes", the long title to the Animals (Scientific Procedures) Act 1986.  It arises out of an undercover investigation conducted by a BUAV (British Union for the Abolition of Vivisection) investigator between March 2001 and January 2002 at the Cambridge University Department of Experimental Psychology facility at the Innes Building in Cambridge.  Save in one significant respect, the issues which I have to decide are no longer closely tied to what is alleged to have occurred at the facility.  A brief summary of the history is accordingly all that is required.
2.	In June 1998 three project licences were granted by the Secretary of State for the Home Department (who I shall refer to hereafter as "he") for experiments on marmosets at the facility.  The purpose of each was to further research into the functioning of the human brain and illnesses affecting it (stroke, Parkinson's and Huntingdon's chorea) by experiments on marmosets.  Marmosets are primates.  The experiments included procedures intended to induce stroke or brain damage in the marmosets by surgery and other means.  Adverse effects on the marmosets would necessarily be produced by the procedures.  Before they could be lawfully undertaken, licences were required from the Secretary of State.
3.	In the applications for the licences, the adverse effects were categorised as mild or moderate.  The majority was moderate.  The licences contained standard conditions for the purpose of keeping the adverse effects to a minimum.
4.	As a result of the undercover investigation, the BUAV believed that the applications had miscategorised the adverse effects of the most severe procedures as moderate when they should have been categorised as substantial, and that there had been significant breaches of the licence conditions.  It reported its belief to the Secretary of State.  He appointed the Chief Inspector of the Animals (Scientific Procedures) Inspectorate, Dr Jon Richmond, to investigate and report.  He did so and reported to the Secretary of State in October 2002.  His report was published on 11th February 2003 and notified to the BUAV on the previous day.  His conclusion was that there had been no wholesale breach of the licence conditions, and that the adverse effect on the marmosets had been correctly categorised as moderate in the applications.
5.	By a letter dated 1st October 2003 the Secretary of State stated that he intended to take no action as a result of Dr Richmond's report.  Formally these proceedings challenge that decision, but the underlying questions which fall to be answered are somewhat removed from it.  The first is of general importance.  The second has no significance beyond the facts of this case.  The first question is: was the categorisation of the procedures in the applications for the three licences as "moderate" correct?  The second is: was the Chief Inspector's report so vitiated by error as to be required to be quashed or declared irrational on Wednesbury grounds? 
6.	The proceedings raise two further issues not tied at all to the Cambridge projects:
 (1) Is the Secretary of State correct to categorise the death of animal used for experimental or scientific purposes as not "an adverse effect" on the animal for the purposes of section 5(4) of the Act?
 (2) Was the Secretary of State required to undertake a consultation procedure before publishing on 13th November 2003 a guidance note relating to the restriction of food and water provided for laboratory animals, and to lay the guidance note before Parliament under the negative resolution procedure?
7.	I first turn to the statutory scheme.  It applies to any living vertebrate other than man, a "protected animal" (section 1(1)).  It governs any "Regulated procedure" defined by section 2(1) as:
"... any experimental or other scientific procedure applied to a protected animal which may have the effect of causing that animal pain, suffering, distress or lasting harm."
8.	The definition is expanded and qualified by subsections (2) to (8).  Two subsections are relevant to this case, (4) and (7).  Section 2(4) reads:
"In determining whether any procedure may have the effect mentioned in subsection (1) above the use of an anaesthetic or analgesic, decerebration and any other procedure for rendering an animal insentient shall be disregarded; and the administration of an anaesthetic or analgesic to a protected animal, or decerebration or any other such procedure applied to such an animal, for the purposes of any experimental or other scientific procedure shall itself be a regulated procedure."
9.	Subsection (7) provides:
"Killing a protected animal is a regulated procedure only if it is killed for experimental or other scientific use, the place where it is killed is a designated establishment and the method employed is not one appropriate to the animal under Schedule 1 to this Act."
That is a reference to the means of killing humanely set out in Schedule 1.
10.	Sections 3 to 6 contain provision for licensing regulated procedures.  The person applying the procedure must be licensed by the Secretary of State to do so (section 3A and 4), the procedure must be applied as part of a programme of work specified in a licence granted by the Secretary of State (section 3B and 5) and the procedure must be carried out in a place certified by the Secretary of State (section 3C and 7).  Sections 5(4) and (5) are of importance:
"(4) In determining whether and on what terms to grant a project licence the Secretary of State shall weigh the likely adverse effects on the animals concerned against the benefit likely to accrue as a result of the programme to be specified in the licence.
 (5)  The Secretary of State shall not grant a project licence unless he is satisfied ‑
 (a) that the purpose of the programme to be specified in the licence cannot be achieved satisfactorily by any other reasonably practicable method not entailing the use of protected animals; and 
 (b) that the regulated procedures to be used are those which use the minimum number of animals, involve animals with the lowest degree of neurophysiological sensitivity, cause the least pain, suffering, distress or lasting harm, and are most likely to produce satisfactory results."
11.	The certificate issued under section 6 must specify a person for the day‑to‑day care of animals and a veterinary surgeon, who may be the same (section 6(5)).  Section 6(6) provides:
"If it appears to any person specified in a certificate pursuant to subsection (5) above that the health or welfare of any such animal as is mentioned in that subsection gives rise to concern he shall ‑ 
 (a) notify the person holding a personal licence who is in charge of the animal; or 
 (b) if there is no such person or it is not practicable to notify him, take steps to ensure that the animal is cared for and, if it is necessary for it to be killed, that it is killed by a method which is appropriate under Schedule 1 to this Act or approved by the Secretary of State."
12.	Section 10 makes provision for the conditions of licences and certificates.  They may include such conditions as the Secretary of State thinks fit (section 10(1)).  A personal licence must include:
"(a) a condition to the effect that the holder shall take precautions to prevent or reduce to the minimum consistent with the purposes of the authorised procedures any pain, distress or discomfort to the animals to which those procedures may be applied; and
 (b) an inviolable termination condition, that is to say, a condition specifying circumstances in which a protected animal which is being or has been subjected to a regulated procedure must in every case be immediately killed by a method appropriate to the animal under Schedule 1 to this Act or by such other method as may be authorised by the licence."
13.	A project licence must include:
"... such conditions as the Secretary of State considers appropriate to ensure ‑  
 (a) that where a protected animal has been subjected to a series of regulated procedures for a particular purpose, at the conclusion of the series a veterinary surgeon or, if none is available, another suitably qualified person determines whether the animal should be killed or kept alive; 
 (b) that, if that person considers that it is likely to remain in lasting pain or distress, the animal is killed by a method appropriate to the animal under Schedule 1 to this Act ..."  (Section 10(3D))
14.	A certificate under section must include conditions relating to the general care and accommodation of protected animals, as the Secretary of State considers appropriate to ensure:
"(d) that the well‑being and state of health of such animals are monitored by a suitably qualified person in order to prevent pain or avoidable suffering, distress or lasting harm; and 
 (e) that arrangements are made to ensure that any defect or suffering discovered is eliminated as quickly as possible."  (Section 10(6B))
15.	Breach of a condition of a licence or certificate is a ground for its variation or revocation (section 10(7)).  The Secretary of State may vary or revoke a licence or certificate on that ground, or in any other case in which it appears to him to be appropriate to do so (section 11).
16.	Section 15(1) provides:
"(1) Where a protected animal ‑  
 (a) has been subjected to a series of regulated procedures for a particular purpose; and  
 (b) at the conclusion of the series is suffering or likely to suffer adverse effects, 
the person who applied those procedures, or the last of them, shall cause the animal to be immediately killed by a method appropriate to the animal under Schedule 1 ..."
17.	Section 18 requires the Secretary of State to appoint suitably qualified inspectors for the purposes of the Act.  Their duties include advising the Secretary of State on applications for personal and project licences and their variation, revocation or review (section 18(2)(a)), and reporting to the Secretary of State:
"... any case in which any provision of this Act or any condition of a licence or certificate under this Act has not been or is not being complied with and to advise him on the action to be taken in any such case."  (Section 18(2)(e))
18.	Section 19 establishes the Animal Procedures Committee, whose duty it is to advise the Secretary of State on such matters concerned with the Act and his functions under it as it may determine or he may refer to it (section 21).
19.	Section 21 provide for the issuing of guidance and codes of practice by the Secretary of State:
"(1) The Secretary of State shall publish information to serve as guidance with respect to the manner in which he proposes to exercise his power to grant licences and certificates under this Act and with respect to the conditions which he proposes to include in such licences and certificates.
 (2) The Secretary of State shall issue codes of practice as to the care of protected animals and their use for regulated procedures and may approve such codes issued by other persons.
 (3) The Secretary of State shall consult the Animal Procedures Committee before publishing or altering any information under subsection (1) above or issuing, approving, altering or approving any alteration in any code issued or approved under subsection (2) above."
20.	Guidance and codes of practice must be laid before Parliament and are subject to the negative resolution procedure (section 21(5)).
21.	Section 21(7) requires the Secretary of State to publish and lay before Parliament:
"... such information as he considers appropriate with respect to the use of protected animals in the previous year for experimental or other scientific purposes."
22.	Section 22 provides for offences.
23.	The Secretary of State publishes guidance on the operation of the Act under section 21(1).  The version current at the date of the decisions challenged in grounds 1 and 2 was ordered to be printed by the House of Commons on 23rd March 2000.  Chapter 5 deals with project licences.  Though the guidance does not say so, projects in respect of which licences are sought are commonly divided into protocols.  The project is research into a particular human condition, the protocols are the means by which the project is to be carried out.  Each are ascribed categories of "severity".  In the case of protocols these are described as "severity limits", in the case of projects "severity bands".  The purpose of each is different, as I will explain.  The relevant paragraphs of the guidance are:
"5.40  The severity limit for each protocol is determined by the upper limit of the expected adverse effects that may be encountered by a protected animal, taking into account the measures specified in the licence for avoiding and controlling adverse effects.  It represents the worst potential outcome for any animal subjected to the protocol, even if it may only be experienced by a small number of the animals to be used.
5.41  In assessing the severity limit of a protocol, account should be taken of the effect of all the procedures (whether regulated or not) applied to each animal or group of animals; the nature and extent of the likely adverse effects; the action taken to mitigate those effects; and the humane endpoints to be applied.
5.42  The severity limits in the protocols in the licence are categorised as follows.
•  Unclassified
Protocols performed entirely under general anaesthesia, from which the animal does not recover consciousness.  This includes the preparation and use of decerebrated animals.
•  Mild 
Protocols that, at worst, give rise to slight or transitory minor adverse effects.  Examples include: small infrequent blood samples; skin irritation tests with substances expected to be non‑irritant or only mildly irritant; minor surgical procedures under anaesthesia such as small superficial tissue biopsies or cannulation of peripheral blood vessels.  However, if used in combination or repeated in the same animal, the cumulative severity may be increased beyond mild.  Protocols may also be regarded as mild if they have the potential to caused greater suffering but contain effective safeguards to initiate effective symptomatic or specific treatment or terminate the protocol before the animal shows more than minor adverse effects.
•  Moderate 
Protocols regarded as moderate include toxicity tests (which do not involve lethal endpoints) and many surgical procedure (provided that suffering is controlled and minimised by effective post‑operative analgesia and care).  Protocols that have the potential to cause greater suffering but include controls which minimise severity, or terminate the protocol before the animal shows more than moderate adverse effects, may also be classed within the moderate severity limit.
•  Substantial 
Protocols that may result in a major departure from the animals state of health or well‑being.  These include: acute toxicity procedures where significant morbidity or death is an endpoint; some efficacy tests of anti‑microbial agents and vaccines; major surgery; and some models of disease, where welfare may be seriously compromised.  If it is expected that even one animal would suffer substantial effects, the procedure would merit a 'substantial' severity limit.
The Secretary of State will not licence any procedure likely to cause sever pain or distress that cannot be alleviated [Section 10(2A)].
THE SEVERITY CONDITION
5.43  Licence holders are required by conditions in both project and personal licences to minimise any pain, suffering, distress or lasting harm.  They should approach the limit of severity which has been authorised only when absolutely necessary to meet the specified objective [Sections 10(2) and 5(5)].
5.44  If it seems likely that the severity limit of a procedure has or may be exceeded, the project licence holder, or the deputy project licence holder, must contact the Home Office.  Provided the project licence holder can show sufficient justification, the Secretary of State may temporarily authorise a higher severity limit for a period of up to 14 days to allow the balance of likely benefit and likely cost to be reviewed and amendment to the project licence to be considered.
5.45  The project licence condition will be regarded as breached if the Home Office is not notified promptly by the project licence holder (or deputy) when a protected animal has, as the result of the regulated procedures performed, suffered (or is likely to suffer) more than is authorised by the severity limit.  It will also be regarded as breached if the endpoints applied resulted in more suffering than was necessary to achieve the specific objectives.
5.46  The condition may be considered to have not been breached if the suffering arose for an unforeseeable, extraneous (that is, a problem unrelated to the regulated procedures), providing adequate and effective steps have been taken promptly to alleviate the suffering.
THE OVERALL SEVERITY BAND OF A PROJECT 
5.47  The assessment of the overall severity of a project will reflect the cumulative effect of each procedure.  This assessment is used by the Secretary of State to weigh the likely adverse effects on all the animals to be used against the benefits likely to accrue, as required by Section 5(4) of the Act.
5.48  The assessment of the severity band for the project as a whole reflects the number of animals used on each protocol and the actual suffering likely to be caused as a result.  It is based on the overall level of cumulative suffering to be experienced by each animal, not just the single worst possible case.  It takes into account the proportion of animals expected to reach the severity limit of the protocol and the duration of the exposure to that severity limit, the nature and intensity of the adverse effects, and the actions to be taken to relieve the suffering.
5.49  The assessments of severity (of individual protocols or the project as a whole) should be reviewed and revised as necessary during the lifetime of a project."
24.	The definition of "Moderate" and "Substantial" severity limits in paragraph 5.42 replaced earlier guidance in slightly different wording:
"4.10  Many procedures are likely to be assessed as moderate.  This could include much of the screening and development of potential pharmaceutical agents; toxicity tests avoiding lethal endpoints; and most surgical procedures, provided that suffering can be controlled by reliable post‑operative analgesia and care.
4.11  Procedures will be regarded as being of substantial severity if they result in a major departure from the animal's usual state of health or well‑being.  These are likely to include acute toxicity procedures where significant morbidity or death is an endpoint; some efficacy tests of antimicrobial agents and vaccines; some models of disease and major surgery where significant post‑operative suffering may result.  If it were expected that a single animal would suffer substantial effects, the procedure would warrant a severity limit of 'substantial'."
25.	Professor Flecknell, a veterinary surgeon and leading expert on the anaesthesia of animals, who has submitted an expert report for the Secretary of State, and Dr Fry, Dr Richmond's successor as Chief Inspector, both consider that the change in wording makes no difference to the criteria to be applied.  The contrary is not submitted by Mr Drabble QC for the BUAV.  I accept that it does not.
The Secretary of State's practice is to refer each protocol with a severity limit of "substantial" to the APC.  He does not refer any protocol with a severity limit of "moderate" or "mild" to the Committee.  The categorisation of protocol severity limits also informs the judgment which must be made about project severity bands by the Secretary of State for the purposes of section 5(4).  Self‑evidently, a project which includes protocols, none of which has a severity limit of "substantial", will not be placed in a substantial severity band.  Severity bands serve two purposes: to inform the Secretary of State's decision under section 5(4), the so‑called "cost‑benefit analysis"; and to inform Parliament and the public of the number and percentage of projects banded as "substantial", pursuant to his duty under section 21(7).  Typically about 2% of projects are assessed to fall into this category, 50 to 60 licences in force in any recent year.  A further possible function of projects limits could be to inform decisions by the Secretary of State on tailor‑made conditions to be imposed on licences, especially those granted for projects with one or more substantial protocol limits.
Dr Fry suggests that the correct categorisation of protocol limits is of much less importance than the narrative description of procedures in the protocol.  That may be so (though it is disputed by the BUAV), but it does not make it any the less necessary that protocol limits are correctly ascribed.  As I have explained, they are the only means by which a protocol with a substantial limit is likely to come to the attention of the APC.  Further, non‑statutory guidance for applicants for licences issued by the Secretary of State requires applicants to nominate a severity limit for each protocol and severity band for each project in the application, and refers to the definitions in the statutory guidance cited.  The Secretary of State is hardly likely to require that to be done if it is of no importance.
Finally, categorisation of projects into severity bands is the principal means by which Parliament and the public are actually informed about the impact of licence procedures on vertebrates.  For understandable reasons (which I understand to be the protection of sites and personnel from harassment or worse from those violently opposed to animal experiments and commercial confidentiality), information about them is not otherwise published.  This is an area of intense concern to organisations, like the BUAV, interested in the welfare of animals subjected to experimental procedures, and of no little interest to the public at large.  It is of importance that the limited information which is made public is accurate.  It is also important that Parliament is accurately informed.  It has authorised experimental procedures on vertebrates for the benefit of humankind.  There is a trade‑off between adverse effects on vertebrates and the benefit which may be achieved for human beings, exemplified in section 5(4).  Parliament, like the Secretary of State, is entitled to be assured that it is assessed on a basis that states the adverse effects on vertebrates accurately.
There is a further element of public interest in the statutory scheme.  In the guidance issued under section 21(1), Parliament and the public are informed about the criteria which will be applied when project licences are granted.  The language used in the guidance is ordinary English, not scientific jargon.  A reasonably well‑informed member of the public or of Parliament will think that he or she can readily understand the general thrust of the categories of severity limits and brands.  Scientists and veterinary surgeons, including those employed by the Home Office, may have a better informed and to some extent different understanding, but it is important in a Parliamentary democracy that the understanding of scientists is not so far removed from that of a well‑informed member of the public or Parliament that the same words mean significantly different things to each.
In paragraph 13 of his second witness statement, Dr Fry states:
"Neither the severity limit nor the wording used in the protocols to describe adverse effects is intended to convey to the public the severity of the protocols.  They are a means of communication between researchers familiar with the particular work and the inspectors who have to judge whether the experiments performed accord with the licence authorities and controls."
26.	This is not the basis on which the Act was presented to Parliament.  Paragraph 12 of the White Paper of May 1985, Command 9521, stated:
"The Home Secretary will be empowered to issue guidelines describing in more detail the factors he will take into account in reaching a decision whether or not to issue a project licence and how the categories of severity are to be defined and applied.  This will be a significant new step in explaining to licence applicants, licensees and members to the general public the way in which the controls are intended to work."
27.	The guidance is not the means by which experts communicate with each other to the exclusion of the public, nor even the means by which they communicate what they are doing to the public; it is the means by which the Secretary of State speaks on behalf of the public to his officials and experts, to applicants for licences and to licence holders, and effect must be given to it in that context.
28.	The starting point for any interpretation of the guidance is accordingly the ordinary meaning of the ordinary words used.  They are not to be construed as a statute (per Sir Thomas Bingham MR in R v Director of Passenger Rail Franchising, Ex parte Save Our Railways [1996] CLC 589, at 601B); where a judgment is called for in their application reasonable judgments must be respected: R v Monopolies and Mergers Commission, Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, at page 32, per Lord Mustill; but ultimately the construction of the guidance is a matter for the court: [1999] CLC 601D.
The first issue 
29.	In 2003 two of the project licences granted in June 1998 were renewed under different numbers, PPL80/1249 and PPL80/1344.  One, PPL80/1326, was not renewed.  No live issue could arise in relation to it, and I do not therefore express any view upon it.  PPL80/1344 has not been the subject of detailed examination in these proceedings.  It is unclear to me whether or not any of its protocols were arguably miscategorised, and I do not propose to examine it further.  The issue which I have to decide is adequately illustrated by PPL80/1249 and I will concentrate only on it.
30.	The live issue in relation to it is strictly whether or not the Secretary of State should have required a substantial severity limit to be applied to some of its protocols, in the light of the procedures described in the protocols and in the light of Dr Richmond's findings as to what had occurred in practice.  The underlying question is whether or not the Secretary of State's officials applied the correct test in determining that the procedures described in the protocols were correctly categorised as being within the moderately severe limit, and so whether or not the Secretary of State's decision to take no action on receiving Dr Richmond's report (and so impliedly accepting that they were) was correct.
31.	The underlying issue is of general importance.  For the purpose of testing the issue it is only necessary to refer to three of the seven protocols in any detail.  All but one of them were categorised as moderate.  Two involved general anaesthesia and a craniotomy, cutting through the skull and turning it on a hinge of bone to expose the meninges beneath, and resecting the meninges to expose the brain.  In one protocol part of the brain was removed by suction ablation.  In another, a cerebral artery was to be tied to produce a stroke intended to affect one limb.  The anticipated effects of each included post‑surgical recovery lasting a few days and transient epilepsy, each of which would be treated by drugs, and persistent alteration of mood or movement, such as to interfere with self‑care, and persistent epilepsy, each of which would be dealt with by killing the animal.  A third protocol stipulated that brain damage would be caused by "excitotoxic lesions" administered through a burr hole, in other words without a craniotomy.  Similar post‑operative effects were anticipated.
32.	Dr Richmond described the classification of the protocols of this project as follows:
"4.17  Six of the protocols have been assigned moderate severity limits.
4.18  Five of the six moderate protocols were thus classified on the basis
•   that the intention is by performing surgery to produce specific and precise brain lesions that require pain relief;
•   that an appropriate period of special care immediately post‑operatively will be provided;
•   that although the purpose is to model aspects of human brain disorders, the animals used do not display the persistent, severe, disabling signs seen in human clinical practice;
•   that the neurological defects are expected to be transient and thereafter only demonstrable on formal testing; or any persisting, stable neurological deficit will not prevent animals undertaking their normal activities of daily living;
•   and, furthermore, that should more severe adverse effects be seen the problems will be promptly identified and remedied."
33.	He also reported on what had occurred in practice, based on the facility's records and those of the veterinary surgeon nominated in the section 6 certificate, and on discussions with him and the staff employed there.  He reached the following conclusions relevant for present purposes:
"                   Stroke Studies
5.C.15  The stroke studies mentioned in the BUAV report use a model based upon occlusion of one middle cerebral artery.  The project licence also makes provision for the occlusion of other blood vessels.
5.C.16  In the immediate post‑operative period the animals are cared for incubator and hand‑fed as required.  This is generally required for several days post‑operatively; all but two animals have been recovered quickly enough to be returned to their home cage in two to three days.
5.C.17.  There have been two deaths using this model within six hours of surgery, and a further two deaths several weeks post‑surgery from cerebral haemorrhages.
5.C.18  This procedure results in impaired use of one hand or arm, affecting voluntary use rather than automatic movements, but without evident weakness or paralysis requiring the provision of special care because the animals cannot undertake their normal activities of daily living.  During the course of this review animals with established lesions were observed and appeared at first sight to be almost normal.
5.C.19  Transient, one‑sided spatial neglect demonstrable on formal testing can be produced but usually resolves within eight to ten weeks.  Again, in the laboratory setting, this does not require that additional care is provided.
...
           Adverse Effects Encountered
5.C.39  Records confirm that since the project licence was granted in 1998, approximately four percent of the animals used for this project have died or have been euthanased on welfare grounds before completing the study protocols.
5.C.40  The stroke produced by the unilateral occlusion of the middle cerebral artery has typically required that animals be kept in an incubator for several days after surgery; the average time in an incubator has been 3.2 days.  During this time animals had reduced use of one hand and arm, and a tendency to rotate and/or turn the head to one side.  Recovery was relatively rapid and the animals stabilised with reduced use of one hand and arm as described above.
5.C.41  In other studies the cognitive dysfunction (principally impairment of certain types of conditional learning and visual discrimination) and any visuo‑spatial neglect caused by damage to selective brain structures was only apparent on formal testing.
5.C.42  Rarely delayed brain disorders were seen three weeks or so after surgery.  These are discussed above.
5.C.43.  Excitotoxic lesions tended to lower the seizure threshold for twenty‑four hours or so post‑surgery.  Some seizures (generally spinal jerks or Jacksonian rather than grand mal) did occur.  These were controlled and managed by the administration of diazepam and placing the animal in dimly let, quiet surroundings to prevent disturbance.
5.C.44  Following the production of bilateral thalamic excitotoxic lesions two animals did not recover: one died whilst still under general anaesthesia and the other within twenty‑four hours of surgery.  The protocol was amended and the problem did not recur.
5.C.45  Animals with bilateral infero‑temporal lesions tended to display behavioural changes analogous to those reported in macaques with the Kluver‑Bucy syndrome.  In the affected marmosets the condition was manifest as a combination of abnormal tameness, altered social behaviour, 'oral tendency', inappropriate sexual behaviour and an inability to distinguish between food and non‑food objects.  Although the abnormal tameness persisted, the other behavioural changes were transient and generally resolved within a few days, during which time the impact of the behavioural changes was managed by appropriate changes to the husbandry and care systems.  One animal, however, had a persistent form of the condition and was humanely killed as it was not considered a suitable research subject.
5.C.46  Although animals' behaviour is altered, and supplementary care must be provided when the condition is first seen, the more socially disabling signs are transient and do not seem to distress the animals."
34.	The BUAV contends that Dr Richmond has understated and anticipated actual outcomes of the procedures.  Judicial review proceedings are not an appropriate means of resolving such issues.  Unless irrationality is clearly demonstrated, I must and do accept his findings as to what did in fact occur.
35.	I turn first to the construction of the guidance.  I derive the following conclusions from it. 
 (1) The severity limit for each protocol is determined by the upper limit of the expected adverse effects that may be encountered by the animal.  This a high threshold test, substantially greater than foreseen as a possibility.
 (2) Experience of adverse effects actually incurred can settle the issue.  What may have been no more than a possibility when the procedure was proposed may be established as a fact once it has been performed. 
 (3) The measures specified in the licence for avoiding and controlling adverse effects must be taken into account in determining the upper limit of the expected adverse effect.  To take an obvious and uncontroversial example, the administering of an anaesthetic will eliminate what would otherwise be a very serious adverse effect produced by surgery.  Such a procedure thus controlled would clearly not exceed the moderate limit.
 (4) Again, experience of the effectiveness or otherwise of measures to avoid and control adverse effects can inform a decision as to the appropriate severity limit when variation or renewal of a licence is considered.
 (5) The severity limit is determined by the worst potential outcome experienced by any animal subjected to the protocol — in the case of substantial severity, even by only one animal.
 (6) The "humane endpoints" are a relevant factor in assessing severity.  Mr Giffin QC submits that death itself is not an adverse effect.  For reasons which I will explain when determining the third issue, I agree.  But it is not irrelevant to the setting of a severity limit.  The draftsman clearly had in mind that the nature of the "endpoint", humane or otherwise, was a relevant factor, hence the reference to "the humane endpoints to be applied" in 5.41 and to "acute toxicity ... where significant morbidity or death is an endpoint" in the explanatory definition of "substantial" in 5.42.  Where the adverse effects of a procedure can only be controlled by killing the animal, that is a clear indication that a higher severity limit is justified than when the adverse effects can be controlled by analgesics.  I would put the threshold somewhat lower: when it is not clear that measures short of killing will be or have in practice proved to be effective at controlling adverse effects, anticipation of the use of killing as a means of control is an indicator of severity.
 (7) The criterion for classification of a procedure as requiring a "substantial" severity limit is that contained in the first sentence of the relevant descriptive paragraph:
"Protocols that may result in a major departure from the animals state of health or well‑being."
36.	Mr Giffin submits, on the basis of the common understanding of Dr Fry and Dr Richmond, that the key word is "major" and that this denotes a relative concept.  The substantial limit is reserved only for procedures producing the most severe effects.  Anything less is moderate or mild, omitting the unclassified limit which is irrelevant to this issue.
37.	In paragraph 49 of his first witness statement, Dr Fry gives as a paradigm example of a procedure requiring a substantial limit:
"The systemic administration of the neurotoxin MPTP to non‑human primates produces the full‑blown clinical condition as seen in human clinical practice although, contrary to the human experience, the clinical signs may improve rather than worsen with time.  This model produces, even with treatment, persistent, severely disabling and distressing clinical signs (with rigidity, tremor, and paucity of spontaneous movements being the main hallmarks of the condition) requiring a prolonged period of intensive care and leaving residual neurological damage requiring high‑dependence special‑care thereafter.  Although not generally believed to be a painful condition in the animal models (it is essentially painless in man) it is considered to cause distress in the affected animals."
38.	He also puts it the other way round: anything more than severe than "moderate" is substantial.  In paragraph 3 of his second witness statement he observes:
"... the reference at the 4th bullet point of paragraph 5.42 of the Guidance to 'Protocols that may result in a major departure from the animal's usual state of health or well being' should be interpreted in that context: i.e. it is a higher order of pain, suffering, distress or lasting harm than is catered for by the Moderate severity limit."
39.	This is unhelpful in determining where the boundary lies, because it begs rather than answers the question.
40.	Mr Giffin's basic premise is in my view erroneous.  The guidance lays down an objective standard.  It is a standard which requires the exercise of informed judgment in its application.  It may be difficult to apply in practice, but the standard is not relative.  A "major departure" from an animal's state of health or well‑being is a serious, significant or important departure, not "the most serious, significant or important departure which could lawfully be licensed", the test implied by Mr Giffin's submission and Dr Fry's observations.
41.	In this context I do not accept Dr Fry's contention that relative categorisation is required as a safety mechanism to require the reporting of unexpected adverse effects from procedures with a moderate severity limit.  Animals subjected to procedures which may result in an objectively‑determined major departure from health or well‑being can and should be protected by appropriate licence conditions, such as condition 12 of the standard personal licence which requires the licensee to ensure that animals are properly monitored and cared for.
42.	Applying that objective standard to the protocols in PPL80/1249 and Dr Richmond's findings about their outcome in practice calls for the exercise of judgment.  The views of scientists and veterinary surgeons who make the judgment must be given proper respect, up to the point at which their judgment can be shown to be vitiated by legal error or clearly wrong.
43.	In my judgment, Dr Richmond's conclusion, in the light of his findings as to what was proposed and what had in fact occurred, that all of the protocols in PPL80/1249 were correctly categorised, was vitiated by legal error and was clearly wrong.  The first legal error was that he did not accept that adverse effects severe enough to require the animals to be killed, rather than treated by means short of killing, anticipated in the protocol in the case of persistent alteration of mood and movement, or of epilepsy, were capable of amounting to major departures from health or well‑being.  This error is implicit in paragraph 4.18 of his report, in which he simply observes that:
"... should more severe adverse effects [than transient neurological defects or persisting defects which will not prevent animals undertaking their normal activities of daily living] be seen the problems will be promptly identified and remedied."
44.	The only remedial means available in those circumstances was killing the animal, which, for the reasons which I have explained, is an indicator of severity.
45.	The second legal error was that he did not apply the "single animal" test required by the guidance to what he found had actually occurred.  It is clear from his findings in paragraphs 5.C.15 to 19 and 5.C.39 to 46 that the procedures had in fact resulted in a major departure from the usual state of health or well‑being of a small number of animals.  In consequence, he reached a conclusion which in my judgment was clearly wrong on that issue.
46.	In reaching that conclusion, I have not overlooked the careful, well‑considered and properly cautious report of Professor Flecknell.  If I were persuaded that my conclusion was firmly contradicted by his report, I would have hesitated long and hard before reaching it; but it is not. Professor Flecknell is at pains to observe that he cannot express a concluded view on the critical issue without further information (see, for example, paragraphs 28 and 38 of his report).  His view that Dr Richmond's conclusion that the severity limits of the protocols were correctly set was reasonable (expressed on page 21 of the report) is based on a large number of variables, as to which he acknowledges he requires further information and on material which he has not seen, but which he assumes was available to and considered by Dr Richmond.  It is also founded on a somewhat different premise from that accepted by me as to the effect of killing as a means of controlling adverse effects on the assessment of severity limits (see paragraph 35).  Accordingly, I treat Professor Flecknell's overall view as tentative and qualified, and, for the reasons given above, I do not regard it as mandating a different outcome from that which I have expressed.
The second issue 
47.	The main thrust of the BUAV's criticism of Dr Richmond's report is that, by reference to the evidence uncovered by its investigator and discovered in the facility's own records about seven named animals, his conclusions that the standard of care required by condition 12 of the personal licence (already referred to) and condition 8 of the project licence were fulfilled.  Condition 8 of the project licence provides:
"It is the responsibility of the project licence holder to ensure adherence to the severity limits as shown in the listing of procedures/protocols (Section 19a) and observance of any other controls described in the procedure/protocol sheets (Section 19b).  If these constraints appear to have been, or are likely to be, breached, the project licence holder shall ensure that the Secretary of State is notified as soon as possible."
48.	Upon this basis it is contended that his report was, in respects other than those relevant to the first issue, irrational and so legally flawed.
49.	I can deal with this issue shortly.  The general conclusion of his report, which dealt with a detailed and wide‑ranging attack on the care of animals at the Cambridge Facility, was that it was a well‑run facility, which provided a good standard of care, including post‑operative care, for the animals within it.  He found that project licence condition 8 had been breached in the case of two animals, Minnie and Tweety, which had suffered adverse effects of such duration and severity that they should have been killed promptly and the facts notified to the Secretary of State.
50.	The BUAV criticised Dr Richmond's silence on the apparent lack of post‑operative overnight monitoring of these animals and of others.  Professor Flecknell and Dr Lewis, who has advised the BUAV, agree that in the case of these and other animals if there was no overnight monitoring the care provided was less than optimum.  No records have been produced in the course of these proceedings which demonstrate that there was such monitoring, and Dr Richmond does not refer in his report to having seen any.  But he does state that he was assured by the staff employed at the facility that overnight monitoring did occur, and he was entitled to accept that statement as true.  Further, he checked the statement against the records that he had seen and concluded that there was no inconsistency between them.  On the evidence produced to me it may not be a complete answer in the case of all seven marmosets, for example Agar who was found dead in the morning.  In another case, Shazney, Professor Flecknell and Dr Lewis' assumption as to what occurred is incorrect.  They thought a craniotomy had been performed.  In fact the records show it was an injection through a burr hole.  I am not persuaded that Dr Richmond's findings where made in relation to individual animals are irrational or clearly wrong.  But even if I were to have been so persuaded, errors of detail in relation to a very small number of animals would not vitiate his overall conclusion.  This amended ground of challenge does not accordingly succeed.
51.	The original ground, that the Secretary of State's decision to accept the report was legally flawed and irrational, is unarguable.  The Secretary of State is entitled to be informed by his expert inspectors.  They have a statutory function under section 18, which only they can discharge.  The Secretary of State is entitled to act or not to act on the basis of what they report to him.  Only if a report from an inspector is so obviously erroneous that it would be obvious to the Secretary of State that it would be irrational to act upon it are his actions or inactions open to successful challenge.
The third issue 
52.	Mr Drabble submits that death is an "adverse effect" for the purposes of section 5(4).  The Secretary of State must, when conducting the cost‑benefit exercise required by section 5(4), take into account the deaths of animals.
53.	Originally Mr Drabble accepted that "adverse effects" was shorthand for the words which appear in section 2(1) and elsewhere "pain, suffering, distress or lasting harm".  He submitted that death was lasting harm.  However, as the argument proceeded he accepted that death, though the most grievous harm which can occur to a living creature, is not lasting.  Once it has occurred, all of the harm to the living creature which it is caused is spent.  Lasting harm can only occur to a living creature.  Mr Drabble's reconsidered submission was that "adverse effects" has an autonomous meaning, not tied to the extended definition in section 2(1).  Mr Giffin submits that the words must mean the same in section 15(1)(b) as they do in section 5(4): killing is the means by which adverse effects are to be terminated.  Accordingly, killing cannot itself be an adverse effect.
54.	I agree with Mr Giffin.  The Act is directed to the protection of living animals.  It was enacted pursuant to two White Papers entitled "Scientific Procedures on Living Animals".  The provisions which deal with adverse effects on animals are all directed to keeping to a minimum pain, suffering, distress and lasting harm.  The words "adverse effects" are simply shorthand for that.  The explanation to that effect in paragraph 9 of appendix I to the Secretary of State's statutory guidance is accordingly correct.
The fourth issue 
55.	One of the codes of practice issued by the Secretary of State under section 21(2) is that "for the housing and care of animals used in scientific procedures", ordered to be printed by the House of Commons on 7th February 1989.  It requires diet to be formulated to satisfy the nutritional requirements of the animals (paragraph 3.29) and clean drinking water to be normally available to animals at all times (paragraph 3.33).  By a guidance note published on 13th November 2003, the Secretary of State indicated that procedures which included the restriction of food intake which did not cause weight loss greater than 15% would not require a project licence.  The note also made observations about water restriction.  This guidance was not submitted to the APC or laid before Parliament.  The BUAV contends that it purports to vary the code of practice relating to diet and to give advice about water restriction.  Accordingly, the procedure adopted (simply publishing it) is unlawful.
56.	The short and sufficient answer to this point is that unless a variation to a code of practice is put through the statutory procedure, it is not a variation of the code of practice.  It is simply what it purports to be: non‑statutory guidance to those who may be considering whether or not to apply for licences.
57.	Accordingly, in summary, the claim succeeds on the first issue and fails on the second, third and fourth.  I will hear counsel on what, if any, further orders are required.
58.	MR COX:  My Lord, I ask that your Lordship makes an appropriate declaration in respect of ground 1.
59.	MR JUSTICE MITTING:  Well, what is an appropriate declaration?  I have covered a fair amount of ground there which I would find very difficult to encapsulate in a single sentence.
60.	MR COX:  Well, the declaration was sought ‑‑ it maybe something that counsel will be able to assist on.  The declaration was sought in the claim form, perhaps your Lordship would turn to page 2 of bundle A? 
61.	MR JUSTICE MITTING:  No, that is no good.
62.	MR COX:  Well, my Lord, it may be that Mr Giffin would want us to have a declaration so that would be purchase on it if he wished to take it further.  But that is the difficulty with not making a declaration, there is then no order.  But I am sure that myself and Mr Giffin are happy to try and think about a formulation that reflects the judgment that your Lordship has just given.  Clearly, the declaration would not extend to the two licences that your Lordship did not deal with, in the sense of upholding that part of the challenge.
63.	MR JUSTICE MITTING:  I am perfectly content to make whatever form of order either or both of you require as a peg on which to hang any further proceedings, but my intention is that the judgment itself in relation to the first issue should suffice to satisfy the claim, because it is not a simple matter that can simply be encompassed in a single sentence.
64.	MR COX:  My Lord, my intention was really for peg purposes.
65.	MR GIFFIN:  My Lord, I was just wondering, as that exchange was continuing, whether, if your Lordship were to declare that the Secretary of State reached an unlawful conclusion in relation to advice, it is at 1249, to the extent indicated in the judgment.  It says nothing whatever in itself, but it probably suffices for something to appeal against.
66.	MR JUSTICE MITTING:  As everybody knows that such a declaration is the meat of the judgment that I have given, and that it only serves for the purpose of providing a peg upon which to hang an appeal, I am content with that or some similar form of wording.  May I leave it to you to draft? 
67.	MR GIFFIN:  Yes, I am sure we can agree.  
68.	MR COX:  I certainly hope we can agree matters.  I know that your Lordship may not be with us much longer in this particular neck of the woods, is your Lordship going to be round for the rest of the day, if we were to get a draft order today?
69.	MR JUSTICE MITTING:  No, I am sitting in this building but in quite a different capacity on Monday and Tuesday.  I will therefore have access to my room during that time and I will be able to look at whatever it is you submit for approval then. 
70.	MR COX:  That is very helpful.
71.	MR JUSTICE MITTING:  Now are there any other applications, I anticipate there are, arising out of my judgment? 
72.	MR COX:  Yes.  I have an application for costs, my Lord.  The application that I make is that the Secretary of State pay half of the claimant's costs.  As your Lordship said in his judgment, the issue on which we have substantially succeeded is an important one of principle.  I accept, of course, that the costs order that your Lordship should make should reflect the fact that we have lost on issues 3, 2 and 4.
73.	MR JUSTICE MITTING:  Not only that you lost on issues 3 to 4, but actually an enormous amount of the documentary material relates to those issues, and an enormous amount of the preparatory work has gone into the second issue.  The third and fourth do not add much by way of costs or preparation time at all, but the second does, even though I have dealt with it shortly. 
74.	MR COX:  My Lord, my submission on that would be that if your Lordship looks at it from the perspective of what would have been done if ground 1 had been the only challenge, then in my submission a very large proportion of that work would have needed to be done anyway.  So, for example, the expert reports that were commissioned were commissioned at the Secretary of State's behest on grounds 1 and 2, the experts have been here and present because of ground 1.  Your Lordship would not have been able to deal with, in the way that your Lordship has done, with ground 1, without being taken through the entirety statutory scheme in the detail that your Lordship has been and without having much of, but I accept not all, of the evidence that was put before your Lordship.
75.	So in my submission this is not a case where it would be right simply to allow each party to bear their own costs, because there would have been a reduction, in both time and paper, if 2, 3 and 4 had not been taken.  There was a very considerable overlap between 1 and 2, and much of that material that needed to be put before the court anyway for us to have succeeded. 
76.	MR JUSTICE MITTING:  An order that you get 50% of your costs with no offsetting order suggests that you in fact have succeeded to 75%.  It is a matter of arithmetic.
77.	MR COX:  It does, and if your Lordship feels that that is wrong, then the right order would be a smaller one.  I accept that.
78.	MR JUSTICE MITTING:  It only requires a fairly modest adjustment to produce no order.
79.	MR COX:  If your Lordship feels that half of the work that was done and half of the time that was spent would have been spent in any event in explaining the scheme and explaining the facts so your Lordship could give a proper judgment on 1, an appropriate order would be a quarter of our costs.
80.	MR JUSTICE MITTING:  Mr Giffin? 
81.	MR GIFFIN:  My Lord, I was going to put in a bid the other way, namely that the claimant should pay a proportion of the Secretary of State's costs which I would pitch at 25%, essentially on this basis.  In terms of the issues that have actually come to court, the Secretary of State has succeeded on three out of four.  In terms of what is required accounted for the great bulk of the work, which is, as your Lordship rightly says, ground 2, the Secretary of State has succeeded on that issue.  It is of course perfectly true to say that in determining ground ‑‑ well, two things.  In determining ground 1, my Lord has essentially proceeded by reference simply to the wording of the guidance, what is in the Chief Inspector's report itself, and what is to be found in the protocol, plus of course the relevant sections of the witness statements.  Whilst I entirely accept that the court would always have required some factual background by way of context to those matters, if one looks at the material that in fact has been put (inaudible), it can't seriously be suggested that that was requisite to the aspects of the matter on which the claimant has succeeded.  For instance, with the whole of Dr Lewis' report is ground 2, essentially the whole of Ms Thew's witness statement is ground 2, about individual animals.  If my Lord were to go back and look at Mr Garner's original statement and ask how much of that, that very large statement, really relates to the issue on which the claimant has succeeded, the answer would have to be very little.
82.	Essentially my Lord is dealing with the costs of the whole proceedings, because the costs of the permission stage and the hearing before Bean J were reserved to today by the trial judge, and my Lord in that context has to take into account that there were other allegations in the claim form not pursued even to the permission stage, though they incurred less costs, and that there were two other heads of claim for which permission was never ultimately granted.
83.	So if one tries to take a sensible view, albeit necessarily broad brush, of where the costs have been incurred and how that relates to success or failure, I say that the great bulk of the costs have been on issues on which the Secretary of State has succeeded, and (inaudible) encapsulated.
84.	MR JUSTICE MITTING:  Understood.
85.	Anything you want to say in reply? 
86.	MR COX:  Only my Lord that the Secretary of State's own expert report, which your Lordship referred to at some extent in the judgment, was clearly regarded by your Lordship as relevant to ground 1.  So it certainly is the case that a significant part of the material that the claimant presented related to ground 2, but the material that the Secretary of State went away and obtained in significant part related to the ground on which the claimants have succeeded.  But in my submission it would not be appropriate to make an order against the BUAV in any sum, given that we have succeeded on an important issue.  As to my submissions, you have what I have said.
87.	MR JUSTICE MITTING:  Thank you.
88.	I make no order for costs.  My reasons for making no order for costs are these.  First, the claimant has succeeded on the most important ground raised by these proceedings.  It will be an unusual case in which a claimant who had succeeded on the most important ground would be ordered to pay his or any part of his opponent's costs.  But the claimant has failed on the three other grounds, one of which, the second ground, required examination and preparation of an enormous amount of evidential material.  Furthermore, the claimant has not succeeded at the permission stage on two other grounds about which I have been invited to express no view.
89.	Accordingly, it seems to me to be a case in which the just outcome is that each side should bear its own costs.
90.	MR GIFFIN:  My Lord, my next application is for permission to appeal on your Lordship's conclusion in relation to ground 1.
91.	MR JUSTICE MITTING:  Mr Cox, not that you have any standing in this, but plainly it is a matter of importance upon which there is no authority from a higher court.
92.	MR COX:  My Lord, that is right.  And so while we would submit it means it has faint prospects of success, I accept what your Lordship says.  The only observation that I do make, as your Lordship may have seen from the papers there was a protective costs order made earlier on in these proceedings.  The BUAV is concerned, not to obstruct any higher court clarification of the issue or review of the issue, but concerned that the BUAV should not be exposed to the risk of having to pay the defendant's costs of the appeal in the Court of Appeal.  Therefore I would ask, I do not know if it is something that can be offered, but in any event I would ask that the court make the grant of permission conditional on the Secretary of State not seeking the costs of his appeal in the Court of Appeal against the claimant.
93.	MR JUSTICE MITTING:  I am in principle sympathetic to a capping order, but I do not see why the Secretary of State should be prevented from recovering costs if in fact it turns out that I am wrong, I am wrong because I will have accepted, albeit with some modification, the submissions that have been made on behalf of the BUAV.
94.	MR COX:  My Lord, there is a capping order for proceedings in this court.
95.	MR JUSTICE MITTING:  That I know.
96.	MR COX:  And I do not seek at this stage to inhibit the Secretary of State from, if he were able to reverse your Lordship's judgment, in reversing your Lordship's order for costs that has just been made.  What I do say is that if the Secretary of State having got your Lordship's judgment wants to take this matter further, then by analogy with the tax cases, as sometimes occurs, it should not be this claimant who bears the burden of assisting the court with those proceedings.
97.	MR JUSTICE MITTING:  The BUAV has challenged as a matter of principle an important aspect of the regulatory regime.  This is not like a tax case in which the Revenue have picked on an individual taxpayer and is using the circumstances of that taxpayer to clarify the law generally. 
98.	MR COX:  I accept that the analogy only goes a little way, my Lord.  But the point is that in my submission different considerations arise on an appeal.  Where the law is now clear, if the Secretary of State wishes to change that clarity he is of course free to do so with your Lordship or the Court of Appeal's permission, but in my submission the BUAV ought to know that while if it takes part it may have to bear its own costs, it might have to bear costs in this court if that order is reversed, it is not right that it should be exposed to the risk of the Secretary of State's costs in those new appeal proceedings.
99.	MR JUSTICE MITTING:  Mr Giffin? 
100.	MR GIFFIN:  If your Lordship was minded to make a capping order in relation to the costs of an appeal, we would not‑‑ it seems to be the logic of there being a capping order below and we would not resist.
101.	MR JUSTICE MITTING:  The issue, although of importance, is now a great deal narrower in the light of my judgment. 
102.	MR GIFFIN:  Yes.
103.	MR JUSTICE MITTING:  I dealt with the three issues on which the claimants have lost.  Unless there is an application for a cross‑appeal there, they now fall by the wayside.  I hope that I have sufficiently set out the factual background and the statutory background in sufficient detail and with sufficient clarity that it can be readily understood by the appellate court, so that the task of an appellate court, I would hope, would be somewhat easier than mine.
104.	MR GIFFIN:  My Lord, I am sure it will be.
105.	MR JUSTICE MITTING:  Are you able to suggest a figure?
106.	MR GIFFIN:  Well we were going to suggest 20, the actual costs I am told of this stage being much more than the 40,000 cap.  So 20,000 is what we would put forward.
107.	MR JUSTICE MITTING:  Yes.
108.	MR COX:  My Lord, we would suggest a figure of £5,000.  It is a short issue of statutory construction.  It should not, in the light of your Lordship's comprehensive judgment, take the Court of Appeal very long, and my learned friend's skeleton should not need to be very long either. 
109.	MR JUSTICE MITTING:  I will grant you, Mr Giffin, permission to appeal on the basis that the first issue that I have decided raises a question of general importance upon which the views of a higher court would be welcome.  I do so conditional upon your not seeking an order for costs against the BUAV greater than £20,000, the costs of the appeal that is. 
110.	MR GIFFIN:  My Lord, I am grateful for that.  Do I take it ‑‑ or perhaps I should make the application that the existing costs capping order is a two‑way one ‑‑ 
111.	MR JUSTICE MITTING:  Yes.
112.	MR GIFFIN:  ‑‑ I would be asking for it on the same basis in the Court of Appeal.
113.	MR JUSTICE MITTING:  That seems to me to be reasonable, except that I have not made any capping order here, I am giving you conditional permission to appeal.
114.	MR GIFFIN:  It would be, I suppose, a condition on condition that we capped our costs at 20K, provided that the BUAV did otherwise.
115.	MR JUSTICE MITTING:  Mr Cox, I do not anticipate you are going to oppose that as a matter of practice, are you? 
116.	MR COX:  Your Lordship may find it ‑‑ well, my Lord, it is not so much a question of opposing it, it is simply your Lordship's point that it does not seem to me that your Lordship can attach a condition to a party who is not seeking permission.  If the Secretary of State wants to impose a costs order on the defendant, then in my submission the right place to do that is in the Court of Appeal.  I think it has to be my submission that your Lordship does not have jurisdiction to impose a condition on me on which you are granting Mr Giffin's application.
117.	MR JUSTICE MITTING:  Mr Giffin, at this time on this day I think the submission is right, that I do not have power to do it.  I am going to give you permission to appeal on the condition that I have indicated and say nothing more.
118.	MR GIFFIN:  My Lord so be it, it may be, if necessary, I can make an application, it is a matter that can be dealt with by the Court of Appeal in due course.
119.	MR JUSTICE MITTING:  Yes, of course.  Your suggestion seems to me to be a perfectly sensible one and it may be that the BUAV can agree to it in due course, in which case no application is needed.
120.	MR GIFFIN:  My Lord, the other thing I was going to ask for was I think the default position is 21 days for a notice of appeal.  Given the time of year, I was going to ask for I think 17th September was the date I had in mind, it is the Monday in the middle of September.  Yes, 17th September.
121.	The other matter, I am told that ‑‑ obviously it will depend when my Lord is around to correct it, but if we could have a direction for expedition of the transcript that would (a) be helpful, because of course the implications pending the appeal need to be considered, and (b) it will help with getting a notice of appeal.
122.	MR JUSTICE MITTING:  Yes.  I know that normally it takes no more than about seven to ten days to get a transcript, even in quite a lengthy judgment, but given the time of year I think it is better that I make an order for expedition of the transcript.  I would ask that it is sent to me at my home address, where I will check it and return it.
123.	MR GIFFIN:  I am particularly grateful to my Lord for that, spoiling your holiday.  Was my Lord then granting the application?
124.	MR JUSTICE MITTING:  I am minded to.  Mr Cox any...?
125.	MR COX:  My Lord, I have no objection. 
126.	MR JUSTICE MITTING:  I extend your time for filing the notice of appeal until 17th September.
127.	MR GIFFIN:  I am grateful.
128.	MR JUSTICE MITTING:  Would one of you draw up an order please to encapsulate that which I have ordered in the last few minutes.
129.	MR GIFFIN:  My Lord, we will do that between us, certainly.
130.	MR JUSTICE MITTING:  Thank you.
131.	MR COX:  My Lord, I have one more application which is simply that while clearly the claimant will ‑‑ first of all, the claimant wishes to give detailed consideration to what your Lordship has said, but in order to avoid troubling your Lordship again I would like to ask your Lordship formally for permission to appeal on grounds 2 and 3.  Ground 3, I have an easier run, in the sense that it is an issue of pure statutory construction which, while not of the same importance as ground 1, is nevertheless of some importance.  In relation to ground 2, it is an issue about which my client is particularly concerned to have the option of renewing it if needs be. 
132.	MR JUSTICE MITTING:  I am aware of their concerns on ground 2.  I acknowledge that ground 3 presents a discrete statutory question.  As far as both grounds are concerned, I am entirely unpersuaded that there is any realistic prospect of success on appeal and I do not think that the issue raised by ground 3 is in fact of general importance.
133.	MR COX:  So be it.
134.	MR GIFFIN:  It remains to say we are very grateful to your Lordship for producing a judgment so quickly. 
135.	MR JUSTICE MITTING:  May I thank you and your leader, who is not here, but through you Mr Drabble, for the clarity and depth of the arguments addressed to me.  It has been a very well‑argued and interesting case.
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