England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2008

Lord Justice Dyson:

Introduction

1. 15 March 2003, the claimant was convicted of a conspiracy to cheat Her Majesty's Revenue and Customs ("HMRC"). By an order dated 4 June 2003 ("the Receivership Order"), Collins J appointed Mr Heath Sinclair of Kroll Ltd as receiver ("the Receiver"). On 9 January 2004, a confiscation order ("the Confiscation Order") was made by HH Judge Boggis QC in the sum of £276,153. The claimant was given 12 months to pay and ordered to serve a sentence of 30 months' imprisonment in default of payment. An appeal against the Confiscation Order was abandoned on 8 September 2005. An appeal against conviction was dismissed on 25 May 2006.
2. Proceedings to enforce the Confiscation Order were issued in the Southampton Magistrates' Court. The hearing took place on 8 September 2006. The district judge found the amount of the sum unpaid to be £266,263. The Receiver had paid £45,873.04 to the magistrates' court on 5 September. But from this figure there fell to be deducted £35,983 interest on the sum unpaid as at 8 January 2005, hence the net figure of £266,263. It is a striking feature of the case that the Receiver had realised the sum of £120,036.50, being the net proceeds of sale of the claimant's property at Ford Avenue. The reasons why the Receiver paid no more than £45,873.04 to the magistrates' court included the fact that he retained £77,163.50 in respect of his remuneration and disbursements in the receivership. For present purposes, it is not necessary to explain the figures in detail. On 8 September, the district judge found that the claimant was unable to pay the sum of £266,263 and ordered that he be committed to prison for the default term of 30 months. It is conceded by RCPO that the district judge was wrong to commit the claimant for the full default term of 30 months. They accept that the term should have been 266,283/276,154 x 30 months (912 days), ie 879 days.
3. On 25 October 2006, Owen J made an order that (i) the Receiver be allowed to deduct the sum of £77,254.50 plus VAT (a slight increase over the sum retained by him) and disbursements and a further sum of £1,000 from the funds he was then holding, (ii) any funds left over after the deduction of these costs should be paid to the magistrates' court towards satisfying the Confiscation Order, and (iii) thereafter the Receiver be discharged from office as management receiver.
4. On 12 February 2007, the district judge stated a case in respect of the following questions for the opinion of the High Court:

"i) whether pursuant to section 75A of the Criminal Justice Act 1988, there is a discretion, in appropriate circumstances, not to make the Applicant liable to pay the full amount of interest due from the date interest becomes liable to the date of the enforcement hearing (in this case £35,983);

ii) whether, pursuant to sections 140 of the Powers of Criminal Courts (Sentencing) Act 2000 and 79 (2) of the Magistrates' Courts Act 1980, there is discretion vested in a District Judge (Magistrates' Court) (or lay Magistrates) considering a committal to prison to:

a) vary the default term to take account of sums realised by the date of the hearing (in this case approximately £120, 000 before Receiver's fees);

b) vary the default term to take account of money realised by the date of the hearing even if the sums realised have been taken up in Receiver's fees;

c) take account of an increase in Receiver's fees as compared with the estimate provided originally to the Crown Court Judge (£38,258) to the sum actually taken in Receiver's fees, £77,163.

iii) whether there is discretion to alter the default period to be served so as to reflect a realisation of £120,000 by the Applicant."

5. During the course of argument, it became clear that these questions could be distilled into the two following questions of law: (i) whether in the circumstances of this case, the Receiver was entitled under section 81(1) of the Criminal Justice Act 1988 ("the CJA 1988") to retain sums in respect of his fees and disbursements in the receivership out of the proceeds of the realisation, or whether he was obliged to pay the proceeds gross of his fees and disbursements to the magistrates' court with a view to receiving them from the justices' clerk under section 81(5) ("the retention of fees issue"); and (ii) whether section 75A(1) of the CJA 1988 gives the court a discretion as to whether interest should be paid on sums unpaid under confiscation orders ("the interest issue"). The importance of these issues has to some extent been diminished by the coming into force of the Proceeds of Crime Act 2002. But we were told that there is a significant number of "old" cases which continue to be subject to the CJA 1988 regime.

The relevant provisions of the CJA 1988

6. Section 75(2) of the CJA 1988 provides:

"Where a magistrates' court orders the defendant to pay an amount under this Part of this Act, that amount shall be treated as a fine for the purposes of section 78(4) of that Act of 2000 (general limit on the power of a magistrates' court to impose imprisonment not to apply in the case of imprisonment in default)."

7. Section 75A provides:

"(1) If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 139 (1) of the Powers of Criminal Courts (Sentencing) Act 2000 or for the purposes of section 75(1) or (2) of the Magistrates' Courts Act 1980)-

a) that person shall be liable to pay interest on that sum for the period for which it remains unpaid, and

b) the amount of the interest shall, for the purposes of enforcement, be treated as part of the amount to be recovered from him under the confiscation order.

(2) The Crown Court may, on the application of the prosecutor, increase the term of imprisonment or detention fixed in respect of the confiscation order under section 139(2) of that Act of 2000 (as it has effect by virtue of section 75 above) if the effect of subsection (1) above is to increase the maximum period applicable in relation to the order under section 139 (4) of that Act of 2000.

(3) The rate of interest under subsection (1) above shall be that for the time being applying to a civil judgment debt under section 17 of the Judgments Act 1838."

8. Section 77(8) provides:

"Where the High Court has made a restraint order, the court may at any time appoint a receiver-

(a) to take possession of any realisable property, and

(b) in accordance with the court's directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver."

9. Section 80(2) provides that where a confiscation order is made in proceedings instituted for an offence to which Part VI applies, the High Court may appoint a receiver in respect of realisable property.
10. Section 81 provides:

"(1) Subject to subsection (2) below, the following sums in the hands of a receiver appointed under this Part of this Act or in pursuance of a charging order, that is—

(a) the proceeds of the enforcement of any charge imposed under section 78 above;

(b) the proceeds of the realisation, other than by the enforcement of such a charge, of any property under section 77 or 80 above; and

(c) any other sums, being property held by the defendant;

shall first be applied in payment of such expenses incurred by a person acting as an insolvency practitioner as are payable under section 87(2) below and then shall, after such payments (if any) as the High Court may direct have been made out of those sums, be applied on the defendant's behalf towards the satisfaction of the confiscation order.

……

(3) The receipt of any sum by a justices' chief executive on account of an amount payable under a confiscation order shall reduce the amount so payable, but the justices' clerk shall apply the money received for the purposes specified in this section and in the order so specified.

(4) The justices' chief executive shall first pay any expenses incurred by a person acting as an insolvency practitioner and payable under section 87(2) below but not already paid under subsection (1) above.

(5) If the money was paid to the justices' chief executive by a receiver appointed under this Part of this Act or in pursuance of a charging order, the justices' clerk shall next pay the receiver's remuneration and expenses.

(6) After making—

(a) any payment required by subsection (4) above; and

(b) in a case to which subsection (5) above applies, any payment required by that subsection,

the justices' chief executive shall reimburse any amount paid under section 88(2) below."

The retention of fees issue

11. In considering this issue, it is necessary to refer to the relevant parts of the Receivership Order. Para 3 of the order specified the powers given to the Receiver without prejudice to any existing powers vested in him by statute or otherwise. These included:

"b. power to draw every month from the assets under his management such sums as are required by him to pay the costs of the receivership;

…

e. power to sell any asset deemed by the Receiver to be appropriate so to sell for the purpose of application of the proceeds of sale in satisfaction of his costs provided for by paragraph 5 below PROVIDED THAT the Receiver gives not less than 14 days notice of the proposed sale to the Defendant;"

12. Para 5 provided:

"The costs of the receivership shall be paid out of the assets received or managed by the Receiver and in priority to any other payment required or provided for by this Order or any other order (other than the costs of realisation provided by paragraph 3.f. above), the recoverable costs shall be reasonable costs and in the event of a dispute about the reasonableness the matter shall be referred to a costs judge in accordance with CPR Part 69, but if no assets or insufficient assets are so received or so managed, the costs of the receivership to the extent of the deficiency shall be paid by the Commissioners of Customs and Excise."

13. Para 6 provided that the Receiver should act in accordance with the letter of agreement between HM Customs and Excise dated 22 April 2003 ("the letter"). Para 7 provided that the Receiver "shall be allowed remuneration in accordance with the said letter of agreement".
14. Para 6 of the letter was in these terms:

"6. REMUNERATION

It is proposed to seek an order from the Court that your costs in this matter should be costs in the receivership; that is to say that your costs shall be paid out of the monies you bring in during the course of this receivership. Before drawing any remuneration you shall obtain the approval of the High Court and shall give HM Customs and Excise and the Defendant the opportunity to make representations as to the amount claimed. In all cases HM Customs and Excise reserves the right to insist upon detailed assessment of all your costs and the cost of any solicitors instructed by you. You will be allowed to draw such remuneration and pay any disbursements from any realisation every two calendar months provided that accounts have been submitted to and approved by the High Court."

15. By 26 May 2006, there was in the Receivership account the sum of £141,533.69. Most of this represented the proceeds of the realisation of the claimant's property at Ford Avenue. There was no insolvency practitioner whose expenses would be payable under section 87(2). The question that is raised by the retention of fees issue is whether the Receiver was entitled by section 81(1) to apply the proceeds of the realisation to satisfy his own fees and disbursements before paying the balance of the proceeds towards the satisfaction of the Confiscation order.
16. It is not in doubt that it is a basic principle of receivership at common law that a management receiver is entitled to be indemnified in respect of his costs, expenses and remuneration out of the assets in his hands as receiver: see per Lord Walker of Gestingthorpe in Capewell v Revenue and Customs Commissioners [2007] UKHL 2, [2007] 2 All ER 370 para 21.
17. But where a confiscation order has been made, section 81(1) makes provision for the application of proceeds of the realisation. The core provision is that the receiver must apply the proceeds towards the satisfaction of the confiscation order, ie pay them to the justices' chief executive. Section 81(4) provides that the justices' chief executive shall first pay any sums payable to an insolvency practitioner under section 87(2) "but not already paid under subsection (1) above". Section 81(5) provides that the justices' chief executive shall next pay the receiver's remuneration and expenses. It is worth noting that the words "not already paid under subsection (1) above" do not appear in subsection (5). Although not determinative of the retention of fees issue, this omission suggests that it may not have been contemplated by Parliament that subsection (1) would be used by the High Court to direct payments of the receiver's remuneration and expenses.
18. Mr Leonard accepts, however, that subsection (1) gives the court the power to direct that payment of the receiver's remuneration and disbursements be made out of the proceeds of a realisation before the balance is applied towards the satisfaction of the confiscation order. That was the conclusion of Munby J in In the Matter of HN and others [2005] EWHC 2982 (Admin) para 11: "the court has power when appointing an enforcement receiver to order that the remuneration of the receiver be paid under section 81(1)". In Re Brian Roger Allen [2003] EWCA Civ 1168, Stanley Burnton J had made an order paragraph 1(b) of which conferred on an enforcement receiver "power to discharge from the proceeds of…sale of the defendant's assets the costs of and incidental to such a sale". The Court of Appeal held that the order had been regularly and properly made: see para 21 of the judgment of Laws LJ. In my view, Mr Leonard's concession is rightly made.
19. Our attention has been drawn to what was said by Simon Brown LJ in Hughes v Customs and Excise Commissioners [2002] EWCA Civ 734, [2003] 1 WLR 177, para 46:

"At first blush one of the respondents' stronger arguments is that section 81(5) really makes little sense if the receiver can in any event deduct his costs from the assets under his control. Why, they ask rhetorically, would he in those circumstances pay over to the justices' clerk a gross sum of money so as to enable the clerk then to pay his remuneration and expenses? Inevitably, he would first deduct them. There is, however, an answer to this question and it provides perhaps, the key to a proper understanding of the remuneration provisions of the statute. The reason why it is necessary, once a confiscation order has been made, for a receiver (whether appointed initially as a management receiver or only later as an enforcement receiver) thereafter to pay over any sum to the justices' clerk gross of his remuneration and expenses is because, as provided by section 81(3), that sum operates to reduce the amount payable under the confiscation order. In the great majority of cases the amount of the confiscation order is determined not by reference to the calculated benefit of the defendant's criminality, but rather by reference to the substantially lesser value of his realisable property. Once the latter has been established and the confiscation order made, it would clearly be wrong to deplete the value of the defendant's assets by deducting the receivers' costs until such assets have been paid to the justices' clerk and thus reduced the amount payable under the order."

These observations could be construed as stating that, once a confiscation order is made, a direction may not be made by the court within the meaning of section 81(1) permitting a receiver to deduct his costs and only pay over the net proceeds to the justices' chief executive. But Simon Brown LJ seems to have been considering the position generally and without reference to the possibility that the court may make a direction under section 81(1) which, as I have already said, gives the court the power to authorise the receiver to deduct his costs before paying the proceeds to the justices' chief executive.

20. I would endorse what Laws LJ said in Re Brian Roger Allen at para 21. Hughes was not deciding what the position would be after a confiscation order had been made. The position arising after a confiscation order has been made is governed by section 81(1). There is nothing in section 81(1) which prohibits the High Court from directing that the costs of realising assets may be deducted from those assets before the assets are applied in satisfaction of the confiscation order. Whether the High Court has given a direction which has that effect will depend on the meaning and effect of the order that is made in the particular case.
21. The order made by Owen J in the present case undoubtedly purported to authorise the Receiver to deduct his fees and disbursements from the proceeds of the realisation. An authorisation by the court in such terms is plainly a "direction" within the meaning of section 81(1): the contrary was not argued before us. But that order postdated the order of commitment to prison made on 8 September 2006. The question that arises in this case is whether there was such a direction before 8 September.
22. Mr Dennison submits that the Receivership Order, when construed with the letter which it incorporated, was such a direction. He says that the order was a direction under section 81(1), which was qualified only by the requirement that the Receiver obtain High Court approval and give RCPO and the claimant the opportunity to make representations as to the amount claimed and, if requested, to insist on a detailed assessment of costs. There was an implied term of the agreement contained in the letter that the Receiver would obtain the approval of the High Court within a reasonable time of the realisation of the proceeds. Until a reasonable time had elapsed, the Receiver was entitled to keep the proceeds in the receivership account and not pay them to the justices' chief executive. If the Receiver delayed unreasonably in obtaining the approval of the High Court, the claimant could seek the directions of the court. Mr Dennison submits that, if the Receiver failed to obtain the approval of the High Court within a reasonable time, it did not follow that the Receivership Order was not a direction within the meaning of section 81(1).
23. I cannot accept these submissions. If a direction within the meaning of section 81(1) is unconditional, it takes immediate effect and permits the receiver to make payments out of the proceeds of a realisation before applying the balance towards the satisfaction of the confiscation order. The authorisation given by Owen J on 25 October 2006 is an example of such a direction. But where a direction within the meaning of section 81(1) is subject to a condition, it does not become effective until the condition has been satisfied. If the condition for recoupment of fees and expenses out of the proceeds is the obtaining of approval from the High Court, the receiver is not entitled to recoup his fees and expenses in this way until he has obtained such approval.
24. Further, he is not entitled to retain the proceeds in the receivership account pending High Court approval. Once the proceeds are in his hands, he must forthwith apply them towards the satisfaction of the confiscation order after making such payments (if any) as the High Court has directed may be made. I do not consider that, upon its true construction, section 81(1) permits the receiver to defer applying the proceeds towards the confiscation order for a reasonable time. The subsection does not expressly provide that the proceeds shall be applied towards the confiscation order within a reasonable time; nor can it be construed as having this effect by necessary implication.
25. Such an interpretation would introduce uncertainty into the statutory scheme. There would be scope for argument as to what constitutes a reasonable time. That would obviously be undesirable.
26. More fundamentally, to allow a receiver to delay applying the proceeds towards the satisfaction of a confiscation order can work real hardship to a defendant where enforcement proceedings are instituted after property has been realised. That is because until the proceeds are so applied, they are not taken into account in calculating the custodial term that will have to be served in default of payment. I would not interpret the statutory scheme as permitting such a result unless compelled to do so by clear language.
27. Section 75A provides a yet further reason why the proceeds should be applied towards the satisfaction of the confiscation order as soon as they are received. The defendant is liable to pay interest to the extent that sums are unpaid under a confiscation order. For reasons that I explain later in this judgment, the court has no discretion to vary a defendant's obligation to pay interest or vary the interest rate. Unpaid interest is treated as part of the amount to be recovered under the confiscation order (section 75A(1)(b)). The liability to serve a custodial term in default of payment will increase by the amount of any unpaid interest. That is a further reason why the receiver should not be allowed to delay payment of the proceeds towards the satisfaction of the confiscation order.
28. It seems to me that the meaning of section 81(1) is clear. The receiver is obliged to pay the proceeds of realisations to the justices' chief executive as soon as they are in his hands less any authorised payments. Unless he has authority to make those payments at the time the proceeds come into his hands, he may not deduct them from the proceeds. There is nothing surprising or unfair about such an interpretation. The receiver is obliged to pay the proceeds to the justices' chief executive, but he will receive his remuneration and disbursements pursuant to section 81(5).
29. I can now return to the Receivership Order in the present case. In my view, it contained a direction as to the circumstances in which the Receiver was entitled to retain a sum in respect of his remuneration and disbursements out of the proceeds of any realisations. This was the arrangement which the court "directed", by incorporating the letter in the Receivership Order. The combined effect of section 81(1) and the arrangement that was sanctioned by that order was that the Receiver was obliged to apply the entirety of the proceeds of realisations towards the confiscation order unless High Court approval had already been obtained for his remuneration or disbursements when the proceeds came into his hands.
30. In practice, High Court approval of remuneration or disbursements would only be obtained in relation to work which had already been done. It would not be in relation to estimated fees and expenses, since para 6 of the letter envisages the possibility of a detailed assessment of costs "in all cases". There would not be a detailed assessment of estimated costs.
31. It follows that the Receiver was not entitled to withhold the proceeds of the realisation between 26 May and 8 September 2006 pending his obtaining of High Court approval of his remuneration and disbursements. The direction in the Receivership Order was subject to a condition (High Court approval of the remuneration and disbursements) which had not been satisfied when the proceeds came into the hands of the Receiver. In these circumstances, the Receiver should have paid the proceeds to the justices' chief executive forthwith upon receipt.

The interest issue

32. The district judge held that she had no jurisdiction to do other than add interest on sums unpaid after 8 January 2005. Mr Leonard submits that interest is punitive in the sense that it is treated as part of the sum due under the Confiscation Order and, if unpaid, will increase the default term to be served. That is why, he submits, if the words in section 75A(1) are capable of giving the court the power to vary the period in respect of which interest is to be paid, or even in an appropriate case dispense with it altogether, they should be construed as having that effect. He submits that the phrase "shall be liable to pay" is ambiguous. It can bear what he calls "the absolute construction" (meaning "bound to pay") or the "discretion construction" (meaning "at risk of paying"). This ambiguity of meaning permits (and requires) the court to adopt the discretion construction.
33. There appears to be no previous authority on the point. In the context of statutes which deal with criminal sentences, the phrase "is liable to" bears the discretion construction. For example, section 8(2) of the Theft Act 1968 provides: "A person guilty of robbery, or an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life". That does not mean that life imprisonment will be passed in every case. It means that the defendant is at risk of life imprisonment.
34. I acknowledge that in the abstract the phrase "shall be liable to" is capable of the two meanings identified by Mr Leonard. But questions of interpretation cannot be decided in the abstract. The meaning of a phrase in a statute must be coloured by the statutory purpose and the context in which the phrase is used.
35. If the phrase "shall be liable to pay interest" in section 75A(1) was ambiguous and was capable of bearing both the absolute and discretion constructions, I would see great force in Mr Leonard's submissions. But in my judgment, when examined in its context, it is clear that the phrase bears the absolute construction. Part VI of the CJA 1988 contains provisions which fall into two categories. One group of provisions expressly gives a function to the court to perform. For example, section 71 imposes a duty on the court in certain circumstances to make confiscation orders. Section 77 gives the High Court the power to make restraint orders and to appoint management receivers (subsection (8)). And there are many other examples. The other group of provisions prescribes the consequences of the decisions of the court. These consequences are defined by the statute and there is no role for the court. One example of such a provision is section 75(2), which provides that where the magistrates' court orders the defendant to pay an amount under Part VI "that amount shall be treated as a fine for the purposes of section 78(4) of [the Powers of Criminal Courts (Sentencing)] of 2000".
36. Section 75A contains examples of both types of provision. Section 75A(1) and (3) are provisions which prescribe the consequences of court orders. There is no role for the court here. They follow automatically if the necessary conditions are satisfied. One of the conditions is that a court has made a confiscation order. If a confiscation order has been made and the sum required to be paid under it has not been paid when it is required to be paid, the consequence follows that the defendant pays interest at the rate defined in subsection (3). The provision accords no role to the court here. The lack of role for the court is not only to be contrasted with those other provisions where a court function is specified; it is to be contrasted with subsection (2) where the court is given the power (but not the duty) to increase the default term of imprisonment or detention if the effect of subsection (1) is to increase the maximum period applicable.
37. The contrast between subsection (2) on the one hand and subsections (1) and (3) on the other is striking and fatal to the Mr Leonard's argument. Where Parliament intends to give the court a discretion, it does so expressly and uses the word "may" which is well understood to connote a discretion.
38. Mr Leonard submits in the alternative that we should apply section 3 of the Human Rights Act 1998 ("HRA") and decide that it is "possible" to interpret section 75A(1) as giving the court the discretion to vary or dispense with interest in order to make the statute compatible with article 1 of the First Protocol of the European Convention on Human Rights ("the Convention"). He accepts in general terms that the regime of receivership orders provided by the CJA 1988 is compatible with article 1 of the First Protocol. As Simon Brown LJ said in Hughes at para 52, there is a significant public interest in ensuring that criminals do not profit from their crimes and that the proceeds of crime are confiscated in the event of conviction. Article1 itself provides that the right of a person not to be deprived of his possessions shall not "impair the right of a State to enforce such laws as it deems necessary…to secure the payment of taxes or other contributions or penalties".
39. But Mr Leonard submits that, if and to the extent that a defendant's liability to pay interest is attributable to a failure on the part of a receiver to apply the proceeds of realisation towards the satisfaction of a confiscation order, the interference with his possessions is not within the scope of article 1. To require a defendant to pay interest in such circumstances is not a proportionate means of securing the confiscation of the proceeds of crime and would be incompatible with article 1. That is why Mr Leonard submits that it is necessary to interpret section 75A(1) as giving the court a discretion.
40. The premise on which this argument is based is that the district judge was right to hold that the proceeds of realisations can be retained by a receiver in respect of his fees and disbursements, and that a defendant is bound to pay interest on a sum equivalent to the amount of those fees and disbursements and serve an increased default term if he does not pay.
41. On the basis of the answer that I have given to the retention of fees issue, this should be less of a problem than might be suggested by the decision of the district judge in the present case. If (as I have held), in the absence of a court direction authorising payment of his fees and disbursements, a receiver is obliged to pay the proceeds of realisations forthwith upon receipt, there is no basis for an argument that section 75A(1) is incompatible with article 1. If I were of the view that section 75A was incompatible, I would not have found it possible to interpret section 75A(1) in the way for which Mr Leonard contends. It is clear that Parliament did not intend the court to determine the period in respect of which interest is payable or the rate of interest. Parliament prescribed the period and the rate and accorded no role to the court in either respect. To hold that the court has a discretion to prescribe the rate and the period (and even dispense with the obligation to pay interest altogether), would be to legislate and not to interpret the statute. Although section 3 of the HRA is a "powerful tool whose use is obligatory", it does not permit the court to amend a statute by judicial legislation: see per Lord Nicholls of Birkenhead at paras 34-44 of In re S (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291.

Answers to the questions

42. I would, therefore, answer the two questions of law identified at para 5 above in the following way. As regards the retention of fees issue, the receiver was obliged to apply the proceeds of realisation towards the satisfaction of the Confiscation Order forthwith upon receipt and was not entitled to retain a sum in respect of his fees and disbursements before doing so. As regards the interest issue, the court has no discretion to decide whether, and if so in respect of what period, a person is liable to pay interest pursuant to section 75A(1) of the CJA 1988.

Mr Justice Jack:

43. I agree with the proposed outcome and with all that Dyson LJ has said save that I would prefer to express no view as to whether, if section 75A(1) construed as we consider it should be was incompatible with article 1, it could or could not be construed to give the court a discretion as to interest.