England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		4 February 2008

1. MR JUSTICE COLLINS: Although nominally included within the claim by Corner House Research, Campaign Against the Arms Trade v the Director of the Serious Fraud Office, these proceedings in reality have nothing directly to do with that claim. What is in issue before me is a claim for a declaration on behalf of three media concerns that they should have access in judicial review proceedings to an acknowledgment of service and to any detailed grounds for contesting the judicial review claim pursuant to rule 5.4C of the CPR. That deals with the supply of documents to a non-party from court records and was inserted into the rules by the Civil Procedure (Amendment) Rules 2006, itself amended by the Civil Procedure (Amendment) (No 2) Rules 2006. 5.4C(1) provides:

"The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of—

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;

(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)."

2. 1A, which was inserted by the (Amendment) (No 2) Rules, provides that that rule is not to be retrospective and has effect only in relation to claims filed after 2 October 2006. 5.4C goes on:

2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.

(3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if—

(a) where there is one defendant, the defendant has filed an acknowledgment of service or a defence;

... [(b) deals with a situation where there is more than one defendant]

(c) the claim has been listed for a hearing; or

(d) judgment has been entered in the claim.

(4) The court may, on the application of a party or of any person identified in a statement of case—

(a) order that a non-party may not obtain a copy of that statement of case under paragraph (1);

(b) restrict the persons or classes of persons who may obtain a copy of that statement of case;

(c) order that persons or classes of persons may only obtain a copy of that statement of case if it is edited in accordance with the directions of the court; or

(d) make such other order as it thinks fit.

(5) A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23."

3. This power derived from applications made by the media that the rule as it existed before, which was effectively that there was no access without an order of the court save to a writ (or what took over from a writ) was wrong and contrary to principles of open justice. The explanatory memorandum to the Amendment Rules records the reason for the change in these terms:

"7.3(a) During the course of litigation, parties are normally required to file at court a number of different documents relating to their case. People who are not a party to a case may have access to some of these documents. This facility is mostly used by members of the press. Late in 2005, the DCA received a number of representations from members of the press concerning statements of case (a particular category of document which sets out a party's case in full). The complaint was that courts were not allowing release of these documents, following a rule change in October 2005 which enabled release of statements of case with permission of the court. The general complaint was that non-release was contrary to the principle of open justice. Following consultation with the press and other interested parties, the new regime shown at rule 3 of the statutory instrument was agreed. This reverses the previous position, making the default position that statements of case will be released unless the court orders that they should not be. 90% of the consultees, including the press, some judiciary and other interested parties (such as professional associations) approved this scheme."

4. The reference in 5.4C is to a statement of case. One has to go back to rule 2.3 to find the definition of statement of case, and by 2.3(1) one finds it is defined thus:

"'statement of case'–

(a) means a claim form, particulars of claim where these are not included in a claim form, defence Part 20 claim, or reply to defence; and

(b) includes any further information given in relation to them voluntarily or by court order under rule 18.1..."

Historically, that would appear to pick up the rules of the Supreme Court as applied to claims instituted by writ between parties. Thus, there is reference to the claim form, the defence, reply to defence, and (b) would be further and better particulars of claim, or of a defence.

5. When the CPR first came into effect, they did not supersede all the old rules of the Supreme Court, and that still is the case. There are some of the old rules which still apply. When the CPR came into being, judicial review was dealt with by order 53 of the Rules of the Supreme Court, and that remained the position until what is now CPR 54 came into effect. The changes followed a review of the Crown Office under the Chairmanship of Sir Jeffrey Bowman. The report was submitted to the Lord Chancellor in March 2000. In effect, the changes recommended by Sir Jeffrey Bowman were put into effect.
6. So far as is important for the purposes of this case, the Bowman Recommendations contained the following. First, in paragraphs 23 and 24 of their report they considered the defendant's response to a claim for judicial review, and in paragraph 24 said this:

"If the defendant indicates that he intends to contest the claim, then he must, in his acknowledgment, also set out an outline of the grounds of defence. There are two reasons for this. Firstly, it requires the defendant to address his mind to the issues in the claim and his response. Secondly, his outline grounds of defence will assist the judge at the permission stage by providing a fuller understanding of the issues and arguments. We do not expect the defendant to incur substantial expense at this stage."

7. They then went on to consider what the defendant should do in the form of putting documents before the court if permission were granted, and in paragraph 34 they said this:

"We believe that the defendant should have 35 days from the receipt of the notification from the claimant that the fee has been paid to lodge and serve evidence and detailed grounds of defence on all other parties."

8. They then went on to say that that was a reduction of the 56 days currently available, but they thought that it was a justifiable reduction of time. It is of some significance that the Bowman Report refers to what the defendant has to do both in the acknowledgment of service and in the detailed grounds as grounds of defence, and indeed on any sensible view of the English language, that is indeed what they are. Unfortunately, the situation is not quite as simple as that because regrettably the way that the CPR is set out has not entirely taken into account the different procedures that applied in the Administrative Court, and have not sometimes properly considered, it would seem, whether provisions which are supposed to have general application can have that application to the procedures of the Administrative Court.
9. It is also of course important to note that the purpose of judicial review is, as its name indicates, for the court to review a decision of a public body, and so it is not quite the same as a dispute between individuals as to some matter with which they have individual concern, but is of no direct concern to others than those individuals. What effectively Mr Clarke submits is that, if one looks at the language of the rules, and in particular the definition of "statement of case" in 2.3(1), it is apparent that the Rules Committee, and so the rules, were intending to focus on private law claims, and the wording which is clearly on the face of it restrictive is not apt to include the acknowledgment of service or the detailed grounds to contest because those are not defences within the meaning of 2.3(1).
10. Indeed, he makes the point that, in Part 54, the wording did not follow the Bowman Recommendations in that the word "defence" was not included. So we see in 54.8, which deals with acknowledgment of service, 54.8(4) provides:

"The acknowledgment of service –

(a) must –

(i) where the person filing it intends to contest the claim, set out a summary of his grounds for doing so ..."

11. So far as the detailed grounds are concerned, in 54.14 it is provided that:

"A defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve–

(a) detailed grounds for contesting the claim or supporting it on additional grounds ..."

12. It is to be noted that 54.1(2)(e) provides that the judicial review procedure means the Part 8 procedure as modified by this section. So one looks to see initially what Part 8 provides in this context. That is the successor to what used to be an originating application, and is most appropriately used where the court is being asked to construe a document of one sort or another, and there is no dispute as to the evidence which is material. It is not limited to such cases, but those are cases in which it is more regularly used. Indeed, 8.1(2) specifically provides:

"A claimant may use the Part 8 procedure where –

(a) he seeks the court's decision on a question which is unlikely to involve a substantial dispute of fact;

...

(6) A rule or practice direction may, in relation to a specified type of proceedings –

(a) require or permit the use of the Part 8 procedure; and

(b) disapply or modify any of the rules set out in this Part as they apply to those proceedings."

I suppose Part 54 might be said to come within paragraph 6, although of course it has its own procedure.

13. Part of the Part 8 procedure provides for there to be an acknowledgment of service. It does not in terms require there to be included in the acknowledgment of service grounds for contesting the claim, but merely requires a statement that he does contest the claim, and if he seeks a different remedy, what that remedy is. However, there is no reason why a defendant should not in his acknowledgment of service set out what his case is, and frequently that is what happens. It is to be noted that by Part 22.1, it is provided as follows:

"(1) The following documents must be verified by a statement of truth –

(a) a statement of case;

...

(d) an acknowledgment of service in a claim begun by way of the Part 8 procedure ..."

14. I am bound to say that it is difficult to see the point of a statement of truth in support of an acknowledgment of service which says no more than there is an intention to contest the claim. But the reality is that that recognises that most acknowledgments of service will indeed go further than that and will contain the party's case, although I suppose it is possible that the statement of truth will contain what in reality is the case of the defendant even though the acknowledgment of service contains no more than a bare indication that it is being contested. However, in their wisdom, the Rules Committee and the rules have provided that that is the way in which Part 8 claims should be dealt with.
15. It is to be noted, and this is in my view a most important distinction, that in Part 8 there is no requirement for the acknowledgment of service to contain any more than the bare denial. In Part 54, as I have already indicated, there is a requirement that both the acknowledgment of service, and later the detailed grounds, should descend to greater particularity: summary only in the acknowledgment of service; detailed once permission has been granted.
16. It is accepted by Mr Clarke, and indeed it would be difficult for him to make any contrary submissions, that the claim form in judicial review proceedings is within 5.4C. It clearly is within the definition of what amounts to a statement of case, and it would be in those circumstances to do unacceptable violence to the language if the court were to decide that a claim form was not a claim form because it was either within Part 8 or within Part 54. That produces the situation that a third party will have access to the claim form and will know what is being submitted by the claimant. But if the contention of Mr Clarke on behalf of the Ministry of Justice is right, he will not have access to the defendant's case on what on any sensible view amounts to his defence. "Defence" was the word used by Bowman. Although it is not specifically used in the rules, it is clear that what is in issue is indeed a defence to the claim.
17. Mr Clarke submits that it is not the same as in a private law case where one has pleadings, and an acknowledgment of service is merely to be regarded as an indication by the defendant to a court why permission should not be granted or, if permission is granted, why it should not review the decision which is in issue. That is a different form of proceedings, it is suggested, to private law proceedings between two private individuals.
18. It is difficult, in my judgment, to see any conceivable justification for the distinction that is sought to be drawn. There is no logic in it. It was suggested by Mr Clarke, certainly in his written submissions in his skeleton argument, that there were reasons why the restriction should apply in public law cases because there was not the same need. Indeed, it was suggested that there should be a requirement that the court give permission in a case dealing with public bodies and public law claims. It seems to me that it is really the other way round: the whole purpose behind the change in the rules to give access by third parties to the statements of claim and defences was in the interests of public justice to enable the media, and any member of the public, to be able to see how the courts were operating and to ensure that the public could look at and see why claims have been brought; why they have been rejected; why they were being allowed to proceed. It seems to me that it is, if anything, more important that there be public access to judicial review claims. They are the more likely to be matters of genuine public concern than litigation between individuals, however much some of the public or some of the media may like to report such claims.
19. I have been referred to the approach that should be adopted in construing the rules. It is submitted by Mr Nicol that it is apparent from various authorities and from Lord Woolf's report which led to the CPR that a purposive approach should be adopted, and that it was not right for the court, when faced with a contention relating to the construction of rules, to adopt a technical and restrictive approach to the language.
20. In YD v Secretary of State for the Home Department [2006] 1 WLR 1646, the Court of Appeal, through Brooke LJ (and I note incidentally Moore-Bick LJ who is now the Chairman of the Rules Committee was a member of that court) said this in paragraph 22:

"Concern has been expressed in some quarters to the effect that the court should be slow to enlarge the boundaries of its inherent jurisdiction and that it should now leave it to Parliament or the Rules Committee to introduce any innovative changes: see, for instance, the article by MS Dockray, 'The Inherent Jurisdiction to Regulate Civil Proceedings' (1997) 113 LQR 120. In my judgment, the enactment of the Civil Procedure Act 1997 and the introduction of the Civil Procedure Rules 1998 have changed the landscape. Recent history has shown the beneficent effect of the judges initiating innovative ways of regulating procedure, followed swiftly by the Rules Committee codifying or extending the new procedures the judges have introduced. CPR r 52.17 (which codifies Taylor v Lawrence [2003] QB 528) and CPR r 3.11 and the Practice Direction supplementing that rule (which codify and extend Bhamjee v Forsdick (Practice Note) [2004] 1 WLR 88) are good examples of desirable changes which would never have been made, or not made so swiftly, if the judges had not been ready to take the lead."

21. So in addition to the purposive approach, it is, in my judgment, following that guidance, correct for the court, if persuaded that a particular construction is appropriate, to apply it. This is material because Mr Clarke submits that it is not for me to decide, contrary to what he submits is the primary meaning of "statement of case" within 2.3(1), that it extends to cover the situation here. That is a matter that should be left to the Rules Committee.
22. Indeed, the issue was before the Rules Committee last year. I have before me minutes of the Committee meeting on 16 February 2007. The minutes record in relation to this point that there was a discussion on the extent of possible interpretation of defence within the list of documents defined as a statement of case within rule 2.3. The general consensus was that under the current rules the definition did not include the response to a judicial review claim. However, the Master of the Rolls suggested that an alternative purposive interpretation could include a number of analogous documents, including a response to a judicial review claim. It was noted, however, that it could not include an acknowledgment of service as this merely stated the intention to defend and did not comply with the requirements in Parts 15 and 16. With great respect to the Committee, that is plainly wrong because an acknowledgment of service in Part 54 goes further than merely stating an intention to defend since it requires a summary of the grounds upon which the claim is contested to be included.
23. The matter was raised again in a later meeting in April, and this resulted in a decision that the matter could be dealt with by guidance issued to the court staff by the Ministry of Justice, and that guidance states:

"(1) The control of access to court documents is an important issue as it involves complex policy issues, eg open justice and data protection. Rules of court are contained in Part 5 of the Civil Procedure Rules and the supporting Practice Direction. This guidance which sets out the procedures to be followed by court staff is consistent with the provisions of the rules and practice."

24. Then dealing with non-party applications, this is said:

"(4) If the request from a non-party is to obtain a copy from the court file of a document filed on or after 2 October 2006, 5.4C will apply."

It sets out the provisions of 5.4C. Then in (6) it says:

"Documents not listed above are not statements of case and are therefore not to be disclosed without the permission of the court: for example acknowledgment of service, applications and responses under Part 23, and appellant's notice and any response under Part 52, or the response to a judicial review."

25. So the approach by the Ministry, and so the response of the court staff, has been to refuse disclosure of acknowledgments of service and of detailed grounds to contest the claim because they are not within 2.3. The question therefore turns on whether, in using the word "defence" in 2.3(1), the rules must be construed as excluding other than what is set out in Part 15, namely what amounts to a formal defence within that rule.
26. It is to be noted that "statement of case" is dealt with in Part 16 and that states, as does Part 15, that it does not apply where the claimant uses the procedure set out in Part 8. On one view, if one adopts a technical reading of the rules, one could say that because 16.1 deals with statements of case and excludes Part 8, a claim in Part 8 is not included within the meaning of 2.3(1). That is not a submission which Mr Clarke has felt able to make, and I am not in the least surprised, but it does show the dangers of applying a restrictive and technical approach, because if one does that one could well exclude anything within Part 8, and by analogy anything within Part 54, which itself applies Part 8, from the scope of any access at all. That would be, to say the least, a strange result of a decision which was made in the interests of open justice. But once it is accepted that a claim form under Part 8 and under Part 54 is to be included, it becomes impossible to justify the exclusion of the equivalent of a defence under those Parts. I am not in this decision specifically concerned to deal with acknowledgments of service under Part 8 between private individuals, and nothing I say need be taken as a final decision in relation to that. But I am concerned to deal with the situation under Part 54 in the knowledge that the rules require that what is set out in the acknowledgment of service and in the detailed grounds is what amounts in effect to a defence. If therefore it is right, notwithstanding the provisions of 16.1, which disapplies Part 8 in relation to what are broadly described as statements of case, then as it seems to me a sensible construction -- if you like a purposive construction -- inevitably brings in the equivalent of a defence. This is not, in my view, to extend the meaning of the word "defence" beyond the meaning that it can properly bear. It is not doing more than indicating that "defence" as used there is not a word which should be given a technical meaning -- a technical meaning being only if within Part 15. One might as well argue that "statement of case" must be given a technical meaning, that is to say a meaning only if within Part 16 because the same principle applies to Part 16 and to Part 15, namely an exclusion of Part 8.
27. It seems to me in those circumstances it does not do violence to the language of the rule to take the view that "defence" includes the judicial review equivalent to a defence. In those circumstances, I am satisfied that the correct meaning of 5.4C is that there is a right to have sight of not only a claim form, but also an acknowledgment of service and detailed grounds. It does not extend to any documents that are annexed to either the acknowledgment of service or the detailed grounds; it merely includes the grounds themselves as set out in either document. That is in conformity with what is allowed by 5.4C. If more is sought, then an application will have to be made under 5.4C(4).
28. It is necessary to add two riders. First, it is of course open to a defendant, as indeed it is to a claimant, to include, either in the claim or any acknowledgment of service, a request that for whatever reason there should not be a disclosure of the whole or part. It may be, for example in a case involving mental health or children or other sensitive matters, that there should be no disclosure unless the court approves it. It will be necessary hereafter for a defendant to make that positive application. It need not be done by means of a formal application in the sense that there has to be a specific application for which payment has to be made; it suffices if, at the same time as the acknowledgment of service, there is served a document requesting it and giving reason for requesting any embargo upon disclosure without a court order.
29. The second rider is that there has been concern expressed that this will have possible retrospective effect to 2 October 2006. Indeed, it will to that extent, because this is a declaration that the law has always been as I have said that it is. It seems to me that there is a practical way of dealing with that. If an application is made in respect of any acknowledgment of service or detailed grounds for contesting which were lodged before publicity is given to this judgment and the need for a specific application to be made, the defendant should have the opportunity to raise any objections to disclosure. This is because the general view indicated to defendants hitherto through the Rules Committee has been that the acknowledgment of service and detailed grounds are not included amongst documentation to which automatic access would normally be obtained. It may be that had a defendant in a particular case appreciated that that would be the position, he might have made an application that there should be an embargo on automatic disclosure, and that if disclosure was to be made, there should be an application.
30. What should be done, and indeed I will ensure as the lead judge of this court that the court office is so instructed, is that in respect of any application dealing with access to an acknowledgment of service or detailed grounds served before this judgment is made public, in the sense that people know what the position is, the court will notify the defendant and the claimant that whoever seeks access should, if possible, indicate that that access is going to be sought so the party knows what is coming and the defendant will have seven days within which to raise any objections, and the matter can then, if necessary, be considered by the court. That will preserve the position in relation to claims made between 2 October 2006 and this decision.
31. I should add too that there are some obvious anomalies in the way that the rules apply if Mr Clarke is right. It is to be noted that by 5.4C(3) a non-party can only obtain a copy of the statement of case if the defendant has filed an acknowledgment of service or a defence. That means in the context of judicial review that, since it is possible for a claim to be allowed to go ahead without an acknowledgment of service being lodged, there could be no access, on the face of it, to the claim form at that stage. That seems to be something of an anomaly, and it is difficult to follow what is the purpose behind that limitation. It is no good saying: once the case goes ahead, there will in due course be access, because no access can exist until either the claim has been listed for a hearing or judgment has been entered, and that may be some weeks -- sadly, having regard to the pressures on this court, sometimes some months -- after the claim has been entered.
32. Similarly, if permission is refused, and as often is the case and indeed was the case in the instant claim (that is the Corner House claim), the judge refusing permission refers to and relies on as his reasons the arguments set out in the acknowledgment of service, it becomes quite impossible for the public to know precisely why the decision was reached to refuse permission. It seems to me that it is wrong that they should be required to make a specific application (which costs money because the court demands a fee to make such an application, which I am told at the moment is £50) -- not much for a newspaper but perhaps quite a lot for an ordinary member of the public who has an interest in it. There is too the added time spent in preparing for and making such an application and finding out whether it is opposed and so on. There is always the prospect that if it is opposed there may be the need to have a contested hearing before the court. It seems to me that it is only right that the matter should be put, as it were, the other way around, namely that there should be disclosure in such circumstances unless there is good reason to say that there should not be, and the defendant in question should raise, if he wishes, such a reason in order to resist a claim.
33. In those circumstances, I have no hesitation in deciding that there should be such access as the claimant submits is appropriate.
34. Now, Mr Nicol, in those circumstances, what remedy? In a sense, the judgment speaks for itself.
35. MR NICOL: My Lord, it does, but I would ask that your Lordship make the formal declaration that I indicated when I made my opening, and that was the adapted form from our application notice. If your Lordship is content, I will draw up a minute of order and if Mr Clarke agrees it --
36. MR JUSTICE COLLINS: Mr Clarke, do you have any objection to that? I think it follows from what I have said.
37. MR CLARKE: That covers our point about evidence and so forth because my learned friend's adjustment for the wording covers that point.
38. MR JUSTICE COLLINS: And I think it is in accordance with what I have said. Mr Nicol, that is fine, if you would be good enough to draft the necessary --
39. MR NICOL: My Lord, I will do that. Can I take it that the matters that your Lordship referred to, as it were, by way of rider towards the end of his judgment are sufficiently catered for by being included in the judgment with such instructions as your Lordship gives to the office?
40. MR JUSTICE COLLINS: I think so.
41. MR NICOL: I would not have thought that it was necessary for that to be included in the order.
42. MR JUSTICE COLLINS: I think that is a matter for the internal court process, as it were, to deal with.
43. MR NICOL: My Lord, there are just two other matters. The first is that it would seem to us to follow from your Lordship's judgment, the matter now having been resolved, that the Ministry of Justice ought to withdraw the guidance that your Lordship referred to.
44. MR JUSTICE COLLINS: Yes, that follows.
45. MR CLARKE: That needs to be changed.
46. MR JUSTICE COLLINS: What I think would be sensible for me to do perhaps is to give, say, 14 days to enable you to sort out and change the guidance, the court to be informed, the public to be informed so that the matter can be put on a proper basis.
47. MR NICOL: So that the interim measures that your Lordship referred to, I think in his second rider, would extend for acknowledgments of service or detailed grounds that were filed between 2 October 2006 and 14 days from today.
48. MR JUSTICE COLLINS: I think that would be sensible, do you not, because I think it is essential --
49. MR NICOL: It makes clarity.
50. MR JUSTICE COLLINS: Exactly, and it gives time for the matter to be publicised, as it were, because after all it is not only central Government, it is all public bodies who are going to be faced with what to some may seem a new regime.
51. MR NICOL: My Lord, I am content with that. The only other matter is the question of costs. I am instructed to make an application for costs to be summarily assessed. A schedule has been prepared. I do not know if it has reached my learned friend.
52. MR JUSTICE COLLINS: I do not think I have seen it.
53. MR CLARKE: My Lord, that reached me just before we came to court this afternoon, so it is late.
54. MR JUSTICE COLLINS: What do you say about costs in principle?
55. MR CLARKE: In principle I say there should be no order as to costs.
56. MR JUSTICE COLLINS: I was wondering about that.
57. MR CLARKE: This is not really a contention between the parties. We have had to ventilate a matter of some public importance given a slightly unsatisfactory state in the drafting of the rules.
58. MR JUSTICE COLLINS: I think it is the sort of situation where, if the Ministry had not opposed, it would have been right, particularly in the light of the Rules Committee's approach, for me to have requested an advocate -- I am not allowed to say amicus now -- to raise any points against.
59. MR CLARKE: You may recall, my Lord, when this matter was first ventilated before you last July, it was your suggestion that, first of all, the defendant in the substantive proceedings have an opportunity to make comments. That went by the board. But, more significantly, you directed that the Ministry of Justice be informed of the application and invited to make representations, and effectively we have performed the function of an amicus, to use a forbidden word, in having the matter debated to resolve the question of what is in the public interest here. So I would suggest it is not an appropriate case for costs to be ordered against the Ministry.
60. MR NICOL: Well, my Lord, it is the nature of judicial review proceedings that they do often become a debate about the interpretation of legislation. That is what has always been. My clients have incurred costs in establishing that their interpretation of the rules is the correct one. It has not been a question about what is in the public interest; it is what the rules mean.
61. MR JUSTICE COLLINS: I know, but as I have said, Mr Nicol, this is not a matter which is entirely straightforward, and I have to bear in mind that the view I have expressed is apparently not the view formed by certainly the majority of the Rules Committee. As I said earlier, I think the Master of the Rolls dubitante --
62. MR NICOL: My Lord, again, it is not a condition of receiving one's costs that one has won a clear case. Often these cases are not --
63. MR JUSTICE COLLINS: No, it is a question of status. As you know, Mr Nicol, it is not the practice of this court normally to award costs, for example, against a court or a Tribunal whose decision is in issue. I appreciate that frequently the Tribunal does not attend and it is the interested party, who is the CPS or the Home Office or however it may be in relation to that body. Nonetheless, there is certainly a principle which seems to have been applied quite regularly that those sorts of bodies do not normally pay costs unless there is a good reason to make a different order.
64. MR NICOL: Of course normally, my Lord, in those cases, the Tribunal or magistrates or whoever it is either take no part in the proceedings or sometimes set out a chronology and history of what has happened in written observations for the court, and then are quite prepared to leave it to the court to decide whether or not they have erred in law. I mean absolutely no criticism of my learned friend's clients, but this is a more common feature of judicial review litigation where the two sides have advanced opposing views as to what the legislation means. One side has been successful and one has not, and the normal rule prevails.
65. MR JUSTICE COLLINS: I follow that as a matter of principle. On the other hand, as I say, I think the situation here is a little different. I mean, yes, your clients have won in the sense that they have obtained from me a decision which gives them the access they wanted for future and actually it will save them quite lot of money in the future because they will not have to make applications and they will not have to spend time and money dealing with that. Maybe I can take that into account.
66. MR NICOL: Well, my Lord, I think that would not be right, with great respect, that the consequences of a favourable decision for a claimant may run from nothing to many millions of pounds, but that is not the issue as to whether costs should be awarded.
67. MR JUSTICE COLLINS: You are probably right.
68. MR NICOL: My Lord, I do not think I can say further. We have won and we ought to get our costs. It is a straightforward issue, but it is in your Lordship's hands.
69. MR CLARKE: My Lord, what we are doing here is ventilating arguments which are important arguments about what the rules mean, what effect they have. If it had not been the Ministry of Justice, as my Lord observes, you would have called probably for assistance to someone appointed by the Attorney General so it becomes the same thing. It is not really a case where one party has scored a win against another and deserves costs.
70. MR JUSTICE COLLINS: They have beaten the system.
71. I have an application for costs by the media organisations, if I may call them such, who have pursued this application on the basis that they have succeeded against the resistance of the Ministry of Justice. One can see that that, on the face of it, may well be thought to justify the award of costs which normally of course follow the event. However, as I have indicated, in the circumstances of this case, it was a question of construing the rules in the face of an indication from the Rules Committee, who considered the issue, and the decision which I have reached is one with which they did not agree.
72. It was not a straightforward matter, and it was necessary, in my judgment, for there to be an argument put on the other side. The Ministry of Justice was, on the face of it, the appropriate party to put that argument, and indeed I so suggested when I indicated last summer that it would in my view be right for the Ministry to be served. If there had been no appearance on behalf of the Ministry, I am quite satisfied that I would have asked the Attorney General to appoint counsel in order that the court should have the benefit of the necessary argument. It is always difficult in this sort of situation because I can see the force of the suggestion that the media organisations should, having been put to the need to take these proceedings, and having succeeded, receive their costs.
73. One does have to take a rather broad brush approach on issues of costs in these cases, and for the reasons I have indicated, namely that the position of the Ministry is more akin to that of an amicus, or whatever one calls him now, as opposed to a party to litigation, I think the appropriate order in these circumstances is that there should be no order for costs.
74. MR CLARKE: My Lord, I am grateful. I am instructed to ask for permission to appeal. My Lord, as your Lordship has said, it is not a straightforward matter; it is a matter of some importance. When one looks at the Rules Committee in February of last year, four High Court Judges with the Master of the Rolls doubted --
75. MR JUSTICE COLLINS: They did not have the argument that I had the benefit of.
76. MR CLARKE: They did not have the argument (inaudible) judicially when they are sitting on the rule-making Committee. But, my Lord, we would say that there is enough in this for the matter to be worthy of permission.
77. MR JUSTICE COLLINS: Mr Clarke, let me make one thing clear, if you were to think in terms of an appeal, I would be very surprised if the Court of Appeal took the view that you should have the benefit of no order for costs if you lose.
78. MR CLARKE: That is something my clients would have to consider.
79. MR JUSTICE COLLINS: In my view, you would be at risk as to costs if you pursued this matter further. What do you say about permission?
80. MR NICOL: Well, your Lordship reached a firm view. You heard the debate and you came to a firm conclusion. In my submission, notwithstanding the views of the Rules Committee without the benefit of that debate, your Lordship should simply say there is no prospect of this appeal succeeding and refuse permission.
81. MR JUSTICE COLLINS: You could not think, Mr Clarke, of any good argument to show that, as a matter of policy or logic, there was good reason to approach this in the way that it had been approached. You relied on what you said was the technical meaning of the rules. It seems to me difficult in those circumstances to see how you could conceivably justify a decision to appeal. You have a decision which accords with commonsense and accords with justice; why not leave it there?
82. MR CLARKE: My Lord, I am simply indicating what my instructions are.
83. MR JUSTICE COLLINS: Well, I am not going to give you permission. If you want to pursue this matter, you will have to go to the Court of Appeal. I have taken a very firm view, and it seems to me that there is, for the reasons I have indicated, no merit in taking the matter further.
84. I have to fill in this form. (pause)
85. What I have said is:

"See transcript, in particular the MOJ recognise that there was no logic in the position they were seeking to maintain and were relying only on a technical meaning of the rule. In those circumstances, there is in my view no reason to grant permission."

86. Thank you.