England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/09/2008

Charles J :

Introduction

1. This case raises a point of construction on what is meant by "the force" in Regulation A12(2) of the Police Pensions Regulations 1987 on which there have been divergent decisions at first instance in R (ota Sussex Police Authority) v Beck and another [2003] EWHC 1361 (Admin) and R(Corkindale) v Medical Appeal Board [2006] EWHC 3362 (Admin). In the Beck case Keith J decided that "the force" meant the police service as a whole. In the Corkindale case Underhill J disagreed and found that it meant the police force for the area in which the Claimant was serving.
2. In the Beck case "the force" was therefore treated as a generic term for the police service as a whole and in the Corkindale case it was given a meaning that equated to the meaning given to a police force by s. 101(1) Police Act 1996, s. 11(3) Police Pensions Act 1976 and by cross reference the Interpretation Act 1978. Those definition sections are, as is common, introduced by the qualification "except so far as the context otherwise requires".
3. This case was determined before Corkindale was decided and it is based on the decision in Beck.
4. In Corkindale Underhill J only heard argument from the Claimant. In my view correctly, in those circumstances I was not invited to follow the later case on the basis set out in Halsbury's Laws Vol. 37 paragraph 1244.

The decision in this case

5. The Claimant joined the Metropolitan Police Service (the MP) in 1982. I shall refer to the Interested Party as the MPA. For a period of years she worked as a dog handler. From about 1997 there was a history of difficulties with various members of the dog section. In June 2001 she began to report symptoms of anxiety and mood disorder. In May 2003 she was signed off sick with anxiety and depression after she had failed a dog handling course and, in her view, been unfairly treated. She described this result as the culmination of many years of bullying and discriminatory treatment. She was off work until July 2004 when she returned to duties at a civilian police office where she had and has no contact with uniformed police officers. She still does this work.
6. In May 2005 a claim in an Employment Tribunal brought by the Claimant was compromised but she does not feel that this produced a satisfactory outcome.
7. In April 2005 a staff grade psychiatrist made a diagnosis that the Claimant suffered from a mixed anxiety and depressive disorder which seemed to him to be more situational than anything else and that if she had to go back to working in the same environment her disablement was likely to be permanent. His recommendation was that she be retired as being permanently disabled. In accordance with the relevant procedure, the question whether the Clamant was permanently disabled was referred to a selected medical practitioner who determined that she was disabled as a result of an adjustment disorder but that that disability was not likely to be permanent. His view was that she was unable to work with uniformed officers of the MP because of her perceived lack of trust and confidence in the MP. He considered that she would be expected to make a good recovery and that she should be fit to work as a police officer in another police force if available. The Claimant appealed.
8. By a majority decision dated 8 October 2006 the appeal was dismissed by the Police Medical Appeal Board (the Board) because it concluded that the Claimant would be able following treatment to return to work as a police officer in a different police force and thus on the basis of the Beck case she was not permanently disabled.
9. The Board's factual conclusion is not challenged in these proceedings although it may be later. Rather it is the basis of the present proceedings because, on an application of the Corkindale case, it would found a conclusion that the Claimant was permanently disabled because it was to the effect that it is likely that she could never return to work in the MP on the basis that, in the MP, she would be able to carry the full range of duties that a police officer may ordinarily be called on to perform.
10. The conclusion of the Board therefore provides the platform for a decision whether what has been referred to as situational permanent disablement, because it relates to work for a particular force, is permanent disablement for the purposes of Regulation A12.

Regulation A 12

11. This provides as follows:

" Disablement

(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and that disablement being at that time likely to be permanent.

(1A) For the purposes of deciding if a person's disablement is likely to be permanent, that person shall be assumed to receive normal appropriate medical treatment for his disablement, and in this paragraph "appropriate medical treatment" shall not include medical treatment that it is reasonable in the opinion of the police authority for that person to refuse.

(2) ------ disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.

(3) Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:

Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital.

(4) Where a person has retired before becoming disabled and the date on which he becomes disabled cannot be ascertained, it shall be taken to be the date on which the claim that he is disabled is first made known to the police authority.

(5) In this regulation "infirmity" means a disease, injury or medical condition, and includes a mental disorder, injury or condition. "

12. It has been decided by the Court of Appeal in R v Sussex Police ex p Stewart [2000] ICR 1122 that "inability to perform the ordinary duties of a member of the force" means an inability to perform the full range of duties that an officer may ordinarily be called on to perform. So an officer who is unable to perform some of those duties (for example an inability to perform confrontational duties because of an injury) is disabled for these purposes even though that officer could be fully deployed on other non-confrontational duties.

Some background matters

13. Before dealing with the rival arguments of construction it is in my view helpful to consider some background matters.

The statutory background and statutory structure of the organisation of policing

14. This is an important part of the background against which the relevant Regulations were drafted.
15. The relevant statutes governing police areas and police authorities have always been local in effect. Historically they imposed duties on a variety of bodies to establish police forces for the relevant area (see the summary in Halsbury's Laws Vol 36(1) paragraphs 206-7). The current structure follows that introduced by the Police Act 1964, which was passed following the Royal Commission on the Police (1962 Cmnd 1728). That Act divided England and Wales into police areas. The Commission Report expressly rejected the implementation of a national police force.
16. The current provisions are contained in the Police Act 1996 which consolidated statutes including the 1964 Act. England and Wales is divided into police areas (s. 1). By s. 2 it is provided that a police force shall be maintained for every police area. Section 3 establishes police authorities for every area. Their functions are to "secure the maintenance of an efficient and effective police force for its area" (s. 6). Members of police forces are under the general direction and control of their Chief Constable and they must obey lawful instructions.
17. Section 101 of the Police Act 1966 provides that "police force" means a force maintained by a police authority. This is a well-established and historical meaning of a police force. The 1996 Act does not recognise an entity being "the police force" or "the force" for England and Wales as a whole. (I shall use the term "a home force" to mean a police force maintained by a police authority and thus a police force as defined by the 1996 Act.) The Secretary of State has certain obligations in relation to policing for England and Wales as a whole, but in that context the generic term used is "the police" (s. 36).

The effect of a conclusion that the Claimant is or is not permanently disabled and related matters

If she is permanently disabled

18. This is, amongst other things, the trigger to (a) the payment of an ill health award, and (b) the payment of a deferred pension (see Regulations B3 and B5). The ill health award is higher than the deferred pension because of uplifts in its calculation. As the Claimant has 26 years service her ill health award would equate to a full pension. If she became entitled to payment of a deferred pension this would be based on her years of service and would not equal what would be her full pension if she completed 30 years service.
19. The full pension is based on 30 years service and relates to final salary. For the first 20 years the fraction (one sixteenth) is smaller than for the last 10.
20. It is common ground, and supported by the Stewart case, that the Claimant's only route to the payment of an ill health award is if the MPA requires her to retire pursuant to Regulation A20. This provides

"Compulsory retirement on grounds of disablement

Every regular policeman shall be required to retire on the date on which the police authority having considered all the relevant circumstances, advice and information available to them, determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty

Provided that a retirement under this Regulation shall be void if, after the said date, on an appeal against the medical opinion on which the police authority acted in determining that he ought to retire, the board of medical referees decides that the appellant is not permanently disabled. "

21. I pause to comment that in my view, on a first reading the wording of Regulation B3 is capable of a wider meaning to include a retirement by the Claimant on the basis of her permanent disablement. But, understandably because of the common ground this possibility was not pursued. That common ground may well be based on Regulations and provisions I was not referred to, which for example may preclude a regular policeman from retiring on the ground that he is or was permanently disabled.
22. It was also common ground that the MPA is not required to take this step and may require the Claimant to carry out restricted duties, which is what she is now doing. As I understand it, if she continues to do that she would have no prospect of promotion and the enhanced final salary - and thus pension - that would bring. It may be that in the case of the Claimant this does not have any practical effect, but it might do in other cases.
23. If the Claimant was in receipt of an ill health award (under Regulation B3) then in broad terms, under Regulation K1, the MPA may consider at intervals whether her disability has ceased, and if it thinks it has, it can give her notice that if she wished to rejoin "the force as a regular policeman" she would be permitted to do so and on rejoining, or if she failed to offer to rejoin in a fixed time, the unsecured portion of her ill health award would terminate. It is common ground that this provision relates to the MP and not to any other home force and therefore in this Regulation "the force" has the meaning given to it in Corkindale. It is thus the MPA that would give the notice and the MP would be the home force she would be permitted to join.
24. If the Claimant was in receipt of a deferred pension then in broad terms the MPA (as the police authority by whom her pension would be payable ) may withdraw all or any part of it for any period in which she is serving as a regular policeman in any police force (Regulation K4). This would include the MP and all other home forces.
25. In broad terms therefore the common ground was that if the Claimant is permanently disabled:

i) she would receive an ill health award if the MPA required her to retire and this would amount to a full pension because of the length of her service so far (26 years),

ii) the MPA could review the payment of that ill health award and terminate part of its payment by inviting her to rejoin the MP (but not another home force),

iii) if the MPA did not require her to retire but she left she would be entitled to a deferred pension on a lower sum based on her years of service. (Save to the limited extent mentioned in paragraph 28 below, questions as the position if (a) the MPA did not require her to retire but did not offer, or continue to offer, the Claimant work she could do, or (b) if the MPS made such an offer of work but she decided that she should leave, were not pursued before me),

iv) the MPA could suspend payment of her deferred pension if she joined another home force (or rejoined the MP), and

v) at all stages whether she is, or is not, permanently disabled is governed by Regulation A12.

26. The underlying logic of this is that if the Claimant is required to leave on the basis that she is permanently disabled she would get a higher award. This fits with the meaning given to disablement in Stewart because a regular policeman can be permanently disabled if he cannot perform all of the ordinary duties that a regular policeman may be called on to perform from time to time. The deployment issues that arise in respect of decisions to be made under Regulations A20 and K1, and thus on whether or not to trigger or bring to an end the payment of an ill health award, are those of a given police authority and force.

If she is not permanently disabled

27. The Claimant would have no entitlement to payment of pension until her retirement age.

Offer of civilian/other duties

28. If this was not taken up, the MPA would continue to pay her (as I understood it on sick leave) for 6 months on full pay then for 6 months on half pay, and thereafter there is a discretion to make some further payments but they would be very small.
29. So it seems to me that in those circumstances the Claimant would have little option but to retire and then if she was not certified as permanently disabled the common ground was that she would not receive her deferred pension unless and until she became permanently disabled or reached the age of 60.

Transfer between forces

30. It was common ground that a regular policeman cannot be required to join another home force and that that home force cannot be required to allow him to do so. There are therefore no mobility provisions that enable one force to compel a transfer to a different area, and thus force. So although secondment and transfer without any retraining are common, they have a consensual base.
31. Unsurprisingly there are however provisions that enable service in different forces to count as years of service in the calculation of the amount of the pension to be paid when a police officer retires. This approach to the calculation of years of service can be said to introduce the concept of a police force in the Beck sense, albeit by express reference to transfers between separate forces.

Reasons given by the Defendant for arguing in favour of the Beck conclusion

32. I accept that clarity is required and that it is the duty of the MPA (and other police authorities) to properly administer the pension scheme and to ensure that pensions are properly paid.
33. However in her opening remarks counsel for the MPA appeared to go further and seek to introduce a "floodgates" argument and thus one that was based on a real possibility that the Corkindale case would result in significant financial burdens, albeit that she acknowledged that cases such as this one were likely to be rare.
34. On enquiry it however appeared that it was not known whether an estimate of how many claims might be advanced on the basis of the Corkindale case had been made. Counsel for the MPA was told that three possible cases were known of within the MPA. Counsel for the Board (who attended effectively as an observer and did not advance arguments) told me that the Board had asked for expedition because it felt that there may be a number of cases. He did not know whether there had been. In short there was no factual basis for a "floodgates argument" in respect of "situational permanent disablement".
35. In any event I accept that in considering the likely number of cases, and any floodgates or financial burden arguments, it is important to remember that the cause of the disablement has to be infirmity as defined. Also it seems to me that such an argument should be assessed by reference to genuine cases.

The arguments of the MPA in favour of the Beck conclusion

36. It contends that the Beck conclusion is correct. In doing so it acknowledges that:

i) the generic concept of the police force as a whole is not defined in the Regulations or any of the background statutory material, and

ii) in the Regulations it is only in Regulation A12 that the expression "the force" has that meaning.

As to those starting difficulties it says that the absence of such a generic concept in the statutory material does not preclude its existence as a matter of ordinary usage of the English language in Regulation A12 and that elsewhere in the Regulations either (a) qualifications in the language, or (b) the context indicates that "the force" means the relevant home force or one of the home forces.

37. The following points are at the heart of the argument advanced by the MPA to support the view of Keith J in the Beck case:

i) in ordinary usage the use of the words the police, or the police force, or the force, can refer to the police service as whole, and difficulties in defining that concept or entity, for the purpose Regulation A12, do not lead to a conclusion that that meaning is not the correct one,

ii) the obvious need to allow service in different police forces to count as years of service for the calculation of the amount of a pension introduces, or supports, the view that in the Regulations the concept of the police service as whole has a place,

iii) the purpose of the provisions relating to permanent disablement is to compensate an individual for loss of his or her livelihood if he or she cannot perform all of the ordinary duties of a police officer and, given that there are now many nation wide standards and great conformity as to what those duties are in all home forces (demonstrated by secondments and transfers without re-training), it would be strange if a person who could perform all of those ordinary duties in all but one force (or in many home forces) was regarded as being permanently disabled and thus deprived of his or her livelihood as a police officer, and

iv) the language used in Regulation A12, and the qualifications used in other Regulations that make it clear that therein "the force" is referring to one home force, support the view that absent such qualification (or an obvious context) the term "the force" can and does have the wider generic meaning.

38. As Keith J remarked in the Beck case it is easy to see where the MPA are coming from, and I add it is also easy to see why on the facts of the Beck case its result can be regarded as one that is fair and accords with the purpose of the Pension Regulations. This is less obvious on the facts of this case but I accept that on those facts, and generally, the Beck construction cannot be said to be one that is outside the range of provisions that could reasonably have been included in the Pension Regulations.
39. Further I accept that as a matter of ordinary use of English a permissible meaning of the language used in Regulation A12 is that given to it in Beck. Further it seems to me that it is at least a possibility that the draftsman did not direct his mind to the concept of "situational permanent disablement".

The Claimant's arguments in favour of the Corkindale view

40. I have had the benefit of wider argument than both Keith and Underhill JJ, in the light if their competing decisions. I have concluded that Underhill J is correct for the reasons he gives and the arguments advanced by the Claimant which adopt and expand on that reasoning. I shall now set out my reasoning by reference thereto.
41. To my mind given that there are two potential meanings based on an application of ordinary usage of the words the points made by Underhill J in paragraphs 10 and 11 of his judgment by reference to the definition sections he refers to (and I set out below) provide compelling support for his conclusion.
42. The Police Pensions Regulations 1987 are made under the Police Pensions Act 1976. By s. 11 of the Interpretation Act 1978 expressions used in that statute have the same meaning in the Regulations unless a contrary intention appears. By s. 11(3) of the Police Pensions Act 1976 (as it currently reads) it is provided that:

" In this Act, except so far as the context otherwise requires, "police force" means any police force within the meaning of the Police Act 1996 or the Police (Scotland) Act 1967, and, in respect of -

(a) any person such as is mentioned in section 1 (1) of the Police (Overseas Service) Act 1945; and

(b) any person engaged or employed in any service such as is mentioned in subsection (1)(a), (aa), (ab), (ba), (bb), (bc), (bd), (bf), (bg), (bh), (bi), (bj), (bk), (b) or (c) above

any body in or with which that person is serving. " [These bodies include organisations such as the Serious Organised Crime Agency]

43. Appendix A to the Police Pensions Regulations 1987 is a glossary of terms. As initially enacted it included the following definition: "police force" means "a (my emphasis) home police force or an overseas corps". "Home police force" was defined as "any police force within the meaning of the Police Act 1964 or the Police Scotland Act 1967". The definition of police force was revoked (but not in relation to Scotland) by SI 2003/2716. The explanatory notes say that this amendment was:

" consequential on the implementation of section 126 of the Criminal Justice and Police Act 2001 (c 16) which made provision for the Director Generals and police members of the National Criminal Intelligence Service and National Crime Squad to become members of the Police Pension Scheme "

44. Sections 5 and 6 of the Interpretation Act 1978 (read with s. 23 and Schedule 1) provide that unless the contrary intention appears:

i) "police area", "police authority" and other expressions relating to the police have the meaning or effect described in relation to England and Wales by s. 101(1) Police Act 1996 (by which it is provided that a police force means a force maintained by a police authority), and

ii) words in the singular include the plural.

45. Like Underhill J, I accept that these definitions are not decisive.
46. But it seems to me that unless it can be demonstrated with sufficient clarity that the "context otherwise requires" all references to "the force" in the Regulations should be given the statutory meaning of a "police force" and thus the Corkindale meaning.
47. This is reinforced by the point that unless this is done problems concerning the definition and thus the ambit of an otherwise undefined generic concept will be introduced. I return to these problems, but before doing so I record that I accept that in other Regulations the draftsman has used language to make it clear that he had a home police force in mind which gives rise to the argument that he appreciated and meant that other references to "the force" had or could have a generic meaning. But I do not find this argument convincing because (a) if this had been the case it seems to me that he would have made the distinction clear in Regulation A12(2) (or included a definition), and (b) the qualifications used in other Regulations flow naturally from the context and an underlying knowledge that the concept or entity of the police force generally was not a statutory animal.
48. The above mentioned problems arising from a lack of a definition in, or outside, the Regulations of a generic police force relate to what is to be included in, or covered by, it. For example is it all the home forces, or does it extend beyond them. This aspect of the lack of a definition is ameliorated by the fact that the term is used to describe "ordinary duties". But this in turn gives rise to a problem because the Stewart case makes it clear that "ordinary duties" encompasses all those duties. So does that mean that the officer has to be able to perform all of the duties in all of the relevant forces? If so the present debate would be academic. If it does not the question then arises in a case of situational disablement as to the number of the home forces making up "the force" in which the officer must be able to perform all of the relevant duties. Must this be all but one, or would a majority or several do? To my mind the answer is not clear.
49. In my view these points relating to the existence of relevant statutory definitions and the lack of one for the police force as a whole, together with the "knock on" problems arising from the use of such a concept, are powerful factors in favour of the adoption of the statutory definitions and thus of the Corkindale conclusion.
50. Taking a purposive approach, although the Beck view is not outside the range of reasonable application of the power to make the regulations, it seems to me, as it did to Underhill J, that the purposive arguments favour the Corkindale view. I return to this.
51. I also agree with paragraph 9 of Underhill J's judgment that against the statutory background and thus the constitutional fact of the existence of a number of forces the natural meaning of "the force" is to the force in which the officer is serving. In my view this is reinforced by the reference to a member of the force, because the constitutional fact is that a police officer is from time to time a member of one home force. Naturally I accept that the phrase is used to define the duties referred to but in that context the assertion that the duties are common to all the forces is at best a double edged sword because:

i) if that assertion is right, then there is no need to differentiate between a force and the police force generally, except to exclude situational disablement and then you run into the problems referred to earlier concerning how many home forces must that disablement relate to, but

ii) if that assertion is wrong (as it might be), then it seems to me that the natural meaning is to look at the duties that the member has to carry out in the force of which he is a member at the relevant time, namely when the issue falls to be decided (see Regulation A12 (1)).

52. Returning to the language, the MPA emphasised the use of the indefinite article in the latter parts of Regulation A12(2) and (3) in the phrase "a member of a police force" as indicating that "a member of the force" means something different. I accept that there is some force in that particularly because of the use of the term "police force" as opposed to "force". This also explains the use of the indefinite article when referring to a police force. But it seems to me that in isolation the phrase "a member of a police force" could mean any police force (with or without the help of s. 6 Interpretation Act 1978) and it is the context, particularly in Regulation A(3), that makes it clear that what is being referred to is the particular force of which the officer was a member at the time of the injury (albeit that it seems to me that it would also cover an officer on temporary secondment to another force).
53. However in other places in the Regulations:

i) the expression "the force" is used (a) with a qualification which demonstrates that it means a particular home force (e.g. as in Regulation A10 – "the force from which he retired"), and (b) without qualification but because of its context it means a particular home force (e.g. in regulation K1 (relating to suspension of part of an ill health award) and A19 (relating to compulsory retirement on grounds of efficiency of the force), and

ii) the expression "any police force" rather than the force is used when service in any part of the police force looked at generically is intended (see Regulation K4).

In my view these examples weaken the argument that the use of different language within Regulation A12 points to a conclusion that the use of the expression "the force" means the police force generally.

54. I agree with Underhill J (see paragraph 16 of his judgment) that perhaps paradoxically if the draftsman had meant the particular force of which the officer was a member then to have used the phrase he later adopts and thus to have said "[unable] ---- to perform the duties of a member of [a force] [a police force]" could be said to have the opposite meaning to that intended, even though when used later it does refer to a particular police force.
55. This is because the phrase "[unable] ---- to perform the duties of a member of [a force] [a police force]" could be said to refer to any police force of which the officer was a member from time to time. Although it seems to me that if that phrase had been used, because it is linked to a particular point in time by Regulation A12(1) it would (as elsewhere in A12) have meant the police force in which the officer was serving at that time.
56. Against the statutory background I also agree with Underhill J that the use of the expression "member of the force" in the context of determining whether an officer is permanently disabled at a particular time (namely when the question arises for determination) is explicable as the right use of language given the grammar of the sub-paragraph as a whole. In any event, in my view it encompasses within its meaning "the force for the area in which the officer was serving at that time" and thus of which he was then a member.
57. I now return to a purposive approach by reference to the effects referred to earlier of a conclusion that an officer is permanently disabled, remembering that the Regulations were drafted after consultation with the Police Negotiating Board (see s. 1 Police Pensions Act 1976). Although I accept that the Beck view (a) would not render the scheme unworkable, (b) would be within the range of permissible regulations and (c) would found the result that an officer would not receive generous and accelerated benefits when he or she has a continuing ability to perform in another home force all the ordinary duties of a police officer, it seems to me that the following factors favour the Corkindale view:

i) the participation of the police authority of the area in which the officer is serving in the decision making processes that follow a conclusion that an officer is permanently disabled, both (a) to trigger an ill health award, and (b) after it is in payment, and thus the significant relevance of the deployment needs of that and only that police area in those decisions,

ii) the lack of any ability of the officer or the police authority in which he or she is serving to ensure that the officer can join another force. And thus the practical difficulties in an officer joining another home force if he or she wanted to,

iii) the difficulties, disadvantages and potential unfairness such an officer would suffer if his or her entitlements were not triggered by reference to the performance of his or her duties (including restricted duties) as a member of a particular force (see also paragraph 12 of the judgment of Underhill J), and in my view this has to be assessed by reference to officers who have a genuine permanent situational disability,

iv) more generally the linkage between pension entitlement and the ending of a particular office or employment and the general duties owed to an office holder that are analogous to those owed to an employee, and

v) the likely rarity of the problem which relates to an officer who by definition has situational permanent disability.

58. In my view those points effectively refute and remove the force of the argument referred to in paragraph 37(iii) above. For completeness I add that I did not find the argument based on the Fireman's Pension Scheme, which was not pressed orally, helpful.

Overall conclusion

59. For the reasons given, in agreement with Underhill J, I have concluded that "the force" in Regulation A12 (2) means the police force for the area in which the officer is serving at the time that the question of permanent disablement arises for decision, and thus in this case the MP.
60. It follows that I quash the decision of the Board dated 8 October 2006. I did not hear argument on whether remission to a differently constituted board was needed or appropriate, and if it is what directions or declaratory relief should be given or granted. If there is a dispute as to this I will hear argument on it when this judgment is handed down.

Permission to appeal and costs

61. I was asked to deal with these matters, as it might avoid further attendance at court.
62. It was not disputed that costs follow the event so far as the MPA and the Claimant are concerned. Correctly the Board did not seek costs. I will deal with assessment of the amount of the Claimant's costs to be paid by the MPA separately if it is not agreed. I will do so on paper if that approach is agreed or when this judgment is handed down.
63. There is a powerful argument that as the score is now 2/1 at first instance I should grant permission to appeal. However I was urged to give my full reasoning rather than to simply side with Keith J or Underhill J so that that reasoning could be considered and perhaps accepted by the loser. I have therefore decided that the best course is to refuse permission to appeal as this will have the consequence that if the MPA, or the Board, wish to appeal and permission was refused, that refusal by the Court of Appeal would bring some certainty. If they get permission then the divergence of first instance views will be resolved by a decision of the Court of Appeal on the substantive appeal.