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
		12 March 2009

1. THE DEPUTY JUDGE: This has been today the hearing of an appeal under section 11 of the Tribunal and Enquiries Act 1992 from a decision of the Special Educational Needs and Disability Tribunal issued on 8 October 2008. The Tribunal dismissed for the most part an appeal by the parents against aspects of a statement of special needs issued by the respondent local authority, Lambeth, on 3 April 2008. At the heart of the case is the effects on the appellant's son. He has special needs within section 312 of the Education Act 1996, and Lambeth have been under a duty to produce a statement under section 324.
2. Every parent who comes to know the circumstances of cases like these must be full of admiration for the love and commitment shown as in this case to Y by his mother every day of their lives together. Quite apart from the immense personal sacrifices the mother makes all day and every day is the fact that, in this case, she has given up the security and fulfilment of her career to help her son.
3. It is, however, important to be clear what the nature of the appeal is that is before the court. Counsel for both sides are quite clear about that, but it is important that I should spell it out given the presence of those involved, and indeed a photograph on the desk of Y himself.
4. First, the local authority is obliged to make and maintain a statement of special educational needs, and then arrange for those needs to be provided. A parent is of course permitted to make different arrangements, but for costs reasons that will not be a realistic alternative for most. The parent may apply to SENDIST against the description of the Special Educational Needs and/or the provision of them which is specified in the statement. SENDIST is a specialist Tribunal of three members, chaired by a lawyer with particular expertise and knowledge in the areas covered by appeals. The Tribunal can and should draw on its specialist expertise when deciding appeals. A Tribunal differs from a court of law. It has to explain its decisions and give reasons for its conclusions, but not as exhaustively as the courts often do. A Tribunal could not function if it was required to spell out in detail its position on every point raised. Inevitably, when presented with a conflict of evidence between plausible professional witnesses, the Tribunal is going to have to prefer one of them. That is the Tribunal's job.
5. An appeal to this court is not a re-hearing. The appeal considers whether there is an error of law, not whether it would have decided the facts in a different way, and of course a court is a non-specialist body not equipped to do that anyway. An appeal, as in this case, is against the case as put to SENDIST, not the putting forward now of a different case on different grounds.
6. I turn next to the decision, but before doing so I am going refer to two authorities which support the observations I have just made. In the case of W v Leeds City Council and the Special Educational Needs and Disability Tribunal [2005] EWCA Civ 988, the Court of Appeal, in the form of the judgment of Wall LJ, said this about the reasoning processes and obligations of Tribunals:

"I see no reason, in this context, to distinguish between Employment Tribunals and what are now SENDISTs. Sir Thomas said [referring to the case of Meek]:

'It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arise ..."

7. The Lord Justice refers with approval to observations by the Master of the Rolls in that case to the effect that-

"I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."

8. There are also similar observations I notice from Collins J made as far back as 1996 in the case of Staffordshire County Council v J and J.
9. The decision which is the subject of appeal was chaired by Ms Melanie Lewis. The other members of the Tribunal were Mr Zagzoule and Mrs Phillips. The decision records those who attended and deals with certain preliminary matters, notably citing the body of material which the Tribunal drew upon when forming the conclusions which it did.
10. The decision, like all decisions, must be read as a whole, and I propose to read only those paragraphs which have been specifically relied upon by counsel in this case: Mr Rawlings for the appellant, and Mr Oldham for the respondent.
11. The needs of the appellant are of course at the heart of the case, and they are sufficiently described for the purpose of this case in the decision itself:

"There is no real issue about the nature of [Y's] special educational needs. He presents with Autistic Spectrum Disorder and learning difficulties. In Part 2 of his Statement his needs are summarised as having difficulty in relation to expressive and receptive language skills, play and social skills, attention and listening skills, communication difficulties, early literacy and numeracy skills and lack of danger awareness, fine and gross motor difficulties and sensory difficulties."

12. The decision at paragraph 2 goes on to focus upon the real dispute in this case:

"[Y's] parents do not accept that the school now named by the Local Authority can meet [Y's] needs. Turney School is a maintained special school for children with mixed special educational needs but for the past 6 years the school has accepted predominately children on the autistic spectrum and those with speech and communication disorders. A significant factor on the parents' consideration was that Turney School does not use the Applied Behaviour Analysis (ABA) programme. Having initially used the Sun Rise approach they were introduced to the ABA programme last year. They visited the headquarters of the Autism Treatment Trust in Edinburgh where Miss McDonald works, in 2007. For the last year or so they have carried out the ABA programme at home. This has required a major commitment from the whole family, including [Mrs S] giving up her career as an accountant. It has had financial implications for them but they are convinced that this is the best option for [Y]."

13. The decision goes on to explain the questions put by the Tribunal to the mother about this, and she explained that she had been very concerned in particular by Y's self-injurious behaviour, particularly his head banging. This had now stopped. His sleep patterns had improved significantly whereby he now sleeps through the night. He can maintain eye contact and follow adult verbal directions.
14. As the decision goes on to record, Y was at St Anne's Roman Catholic Primary School until July 2007. His annual review concluded that he needed more specialist provision. Historically, there were issues between parents and the LEA over the provision of speech and language therapy, including an application for judicial review. That matter has now somewhat fallen away because both Turney School and the parents' preferred choice, the independent Rainbow School, have speech and language therapists on site who will make their own assessments of Y's speech and language therapy needs.
15. At paragraph 7, reference is made to Mrs Adams, the headteacher at Turney, asking that the LEA fund a full-time learning support assistant for 32.5 hours per week until the time of Y's first annual review in order that he could undergo transition and settle. She had identified that a learning support assistant who has ABA training might be particularly suited to the task because she would be familiar with the regime of the programme that Y has been following.
16. At paragraph 8, there is a summary of the professional reports that agree that Y will require a safe and structured and specialist learning environment.
17. Paragraph 9 contains an evaluation of some of the evidence. I will quote it in full because it is important to the submissions:

"Miss McDonald confirmed that she has over 10 years experience working in ABA. She is not a qualified educational psychologist and has not had the experience of assessing children as you would expect from an Educational Psychologist. She believes that [Y's] strength is his receptive language. We queried what evidence there was that [Y] had made significant progress in his receptive language skills. The report of Kathryn McLean educational psychologist dated 12 November 2007 was based on an observation that [Y] was developing the use of PECS and might have some vocalisation with familiar adults but was more likely to do that at home. It was not based on any formal assessment. Similarly the report of Senlika Naidoo speech and language therapist was based upon observation. Given that on either option [Y] would be in specialist provision, it is not clear how she reached her conclusion that [Y] should have 'access to direct speech and language involvement from qualified speech and language therapist, sessions of 45 minutes observed by the ABA staff with [Y] on a daily basis in order to ensure carry-over and consistency in approach'. Similarly the recommendations for occupational therapy were direct occupational therapy. Miss McDonald described what she saw as the clear benefits of the ABA approach for [Y]. She was less clear as to why the recommended teaching strategies of direct one to one teaching in small steps with constant repetition and reinforcement were unique to ABA."

18. At paragraph 11 there is discussion of the costs for placement at the Rainbow School, which would be an annual total of about £60,000, compared with (pre-funded) the cost at Turney School being nil, as was the cost of transport because Y would join an existing school bus.
19. Mr Neil, the member of the Bar who was representing the mother, did not accept the cost as nil but conceded that even if it were found that both schools could make adequate provision, the cost difference on either analysis was always going to be significant. He therefore accepted that he had to show that Turney School could not meet Y's needs.
20. I would add at that point that, wholly consistently with his professional duty to his client, Mr Rawlings has suggested that that concession should not have been made. In my judgment, he is mistaken about that. It seems to me that, on the facts of this case, it was a thoroughly responsible and professional decision for Mr Neil to take. Mr Neil appears to have shown a high degree of commitment and professional skill throughout his representation for the mother. Indeed, I notice that he was acting pro bono.
21. The Tribunal's conclusions begin as follows:

"We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us at the hearing. We also took account of the Code of Practice and the relevant sections of the Education Act 1996 and in particular section 9 whereby LEAs must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

A. We conclude and it was not challenged that [Y] has severe and complex needs. We are satisfied that the areas of special educational needs are accurately and sufficiently summarised in the concluding paragraph of Part 2 of his statement.

B. There has been no recent formal testing of [Y's] progress in the professional reports that we read, only observation. Prior to starting on the ABA main programme [Y] was in a mainstream primary school, which all agree became not sufficiently specialised to meet his severe and complex needs. [Y's] parents were clear as to the progress they felt he had made since starting on the ABA programme. It is our experience as a specialist Tribunal that children with this level of severe and complex [need] can benefit from a number of specialist interventions and approaches.

C. We were persuaded and assisted by the balanced evidence of Mrs Adams, who properly recognised the limitations of her evidence given that she has not had an opportunity to assist [Y]. Whilst Turney School is a generic special school, it is striking that over 90% of the pupils are on the ASB spectrum and have speech and communication difficulties. We are therefore satisfied that [Y] would be in a similar cohort of peers and that the school is set up to meet their needs. It is not a school which uses ABA, albeit in common with many other specialist schools, it uses elements of that approach. The school uses a number of well-known teaching programmes such as PECS, Makaton Signing and TEACCH.

D. We do not conclude that [Y's] needs can only be met except through following an Applied Behaviour Analysis programme. We queried with Ms McDonald at a number of points during the hearing why this was the only approach that could meet his needs. She gave no clear reasons as to why it was. Her reasoning and that adopted by the multi-disciplinary report was that it had worked for [Y] to date and should therefore continue. That reasoning did not persuade us, because in our experience a number of approaches can be appropriate."

22. Then after dealing with ABA in more detail at paragraph E, at F the Tribunal conclude:

"We are satisfied that Turney School would, whilst not offering an Applied Behaviour Analysis Programme, meet all the other recommendations in the joint multi-disciplinary report and the other professional reports as to the need for a safe and structured specialist learning environment, a clear and consistent structured approach and adults trained and experienced in working with children and young people with autism and related disorders."

23. The Tribunal goes on to make an order dismissing the appeal against Parts 2 and 4, and allowing the appeal in relation to Part 3 to the extent of deleting a paragraph which reads: "The school will be provided with additional resources of 32.5 hours per week ... but will cease when he transfers to Turney School", and inserting: "The school will be provided with additional resources of 32.5 hours per week and a learning support assistant who will support [Y] on a one-to-one basis. This provision will be reviewed at his first annual review".
24. I have quoted from the decision at some length because the issues that have been raised on this appeal are not, as it were, pure questions of law; they raise matters that go into the evidence. In addition to the submissions from counsel and the other materials in the bundle, there are witness statements from Mr Ayebi-Kwakye of the Authority, and from Ms McDonald, the witness, giving their views and reflections upon the outcome of the Tribunal. Since I have indicated why it may not be appropriate to place much weight on what Ms McDonald says in this appeal about her view of the conduct and outcome of the hearing, it seems just for me not to refer to Mr Ayebi-Kwakye's evidence either.
25. When evaluating the competing submissions in this case, it is helpful to bear in mind what the central issue before the Tribunal really was: did the absence of an ABA programme mean that Turney School would not meet Y's needs? I do not propose to go through the written grounds of the appeal because, as so often happens, very sensibly the issues have been refined down. I am going to concentrate on those which were the subject of debate at the hearing, rather than go through written grounds which, as it turns out, have not been relied on.
26. The first issue raised by Mr Rawlings for the appellant concerns the speech and language therapy referred to in the decision. Mr Rawlings points out that the Tribunal was, at least on the papers, invited to make a clear choice between on the one hand weekly therapy sessions of 45 minutes, and on the other just ten sessions throughout the year. He says that the Tribunal failed to determine whether Y required direct therapy or not, and for what period, and failed to give proper consideration to the expert's reports regarding SALT, and failed to decide what level and frequency is required for this child. He refers to the fact that the decision notes that both schools have therapists on site to make their own assessment of Y's speech and language therapy needs, but says that that approach reveals an error of law.
27. He draws attention to cases which emphasise that it is important to identify and diagnose the need before going on to describe the educational provision to which that need gives rise. Only once the educational provision has been identified can one specify the institution or type of institution which is appropriate to provide it. He cites a number of cases, and in particular the case of The Learning Trust v MP and the Special Educational Needs and Disability Tribunal [2007] EWHC 1634 (Admin), a decision of Mr Nicol QC (as he then was). I refer only to a passage from paragraph 2 of the holding, which says this:

"Parts 2 and 3 [that of course is a reference to the statement] had been likened to a medical diagnosis and prescription ... It was important then to identify or diagnose the need before going on to prescribe the educational provision to which that need gave rise, and only once the necessary educational provision had been identified could one specify the institution or type of institution which was appropriate to provide it."

Mr Rawlings then goes on to point out that the Tribunal appears not to have done that, describing it as a classic case of putting the cart before the horse. He submits, with reference to other cases, notably C v Greenwich [1999] ELR 5 and Re A [2000] ELR 639, that the Tribunal is obliged to determine these matters and it simply cannot leave them over for future assessment. He says that it is an error of law to leave the matter to others to decide no matter what school the child might attend.

28. The response of the local authority, through Mr Oldham, is to say that the Tribunal fairly dealt with SALT; it was not an issue they failed to consider. The parents cannot, he suggests, complain that the Tribunal failed to deal with SALT when their own proposal was for a school which would itself assess his SALT needs in a manner envisaged by the Tribunal. He submits that this was an entirely rational and lawful way of dealing with SALT, placing reliance upon the decision of the Court of Appeal to be found in E v Newham LBC [2003] ELR 286. For the purposes of my decision, I refer only to the general considerations which are identified by the Court of Appeal at paragraph 64 of Schiemann LJ's judgment. He says this:

"(i) At one extreme, a tribunal plainly cannot delegate its statutory duty to some other person or body, however well-qualified. Equally, the statutory duty will not be discharged if the description of the special educational provision which is to be made is framed in terms so vague and uncertain that one cannot discern from it what (if anything) the tribunal has decided in that respect.

(ii) At the other extreme, the statutory duty plainly cannot extend to requiring a tribunal to 'specify' (in the sense of identify or particularise) every last detail of the special educational provision to be made ...

(iii) Between those two extremes, the degree of flexibility which is appropriate in 'specifying' the special educational provision to be made in any particular case is essentially a matter for the tribunal, taking into account all relevant factors. In some cases, a high degree of flexibility may be appropriate, in others not."

29. Although I recognise that the facts, and indeed their application, in Newham can be distinguished from those in this case, the general considerations identified between (i) and (iii) are clearly good law which I am obliged to apply. It seems to me that the degree of flexibility is essentially a matter for the Tribunal, taking into account all relevant factors, and there was nothing in this case that was at all unreasonable, irrational or otherwise susceptible to challenge in the way in which the Tribunal proceeded. Before I was taken to the case of Newham, or frankly was aware of what it said, I suggested that it was eminently sensible, and indeed even commonsense, that instead of choosing between two specified options, the Tribunal should prefer that the matter be assessed by the specialist on the spot at the school in good time. There was no suggestion of any lack of availability of this therapy at either institution, and it is not putting the cart before the horse when this particular factor -- availability of SALT -- is not suggested to be unavailable in either institution, and where this particular issue is only one, and not the major, issue which has to be determined by the Tribunal in appraising the suitability of the school.
30. It seems to me that the "cart before the horse", as it were, does not deflect from the force of the reasoning of the Court of Appeal, and the Greenwich case relied upon does not seem to me to be in point because it relates to a Tribunal that has failed to address something, rather than one that has addressed it and come up with this particular solution. This was a matter for the Tribunal, and there was no error of law.
31. The second and third matters raised on the appellant's behalf go somewhat together, and so I propose to deal with them at the same time. The second point is put this way: did SENDIST fail to take into account and fail to explain why it rejected the significance of evidence provided by the expert's reports and the appellant's witness in relation to the fact that ABA should continue on the basis that the appellant required the ABA approach? It is said that the Tribunal misdirected itself and failed to take into account material considerations by rejecting the fact that ABA should continue despite the clear recommendations set out in the multi-disciplinary report and elsewhere. Criticism is also made of the assertion by the Tribunal that it was not persuaded of the merits of ABA because in its experience a number of approaches can be appropriate.
32. Another point is made, which is that the issue was or should have been the specific needs of this child, as opposed to what might or might not be appropriate as an approach for other autistic children or autistic children in general. I was taken to the report of Ms McLean of 14 January, to the letter of support from Ms Gina Venugopal, and other materials in support of a submission that the Tribunal had really failed to get to grips with the underlying material, and as a result its understanding of the evidence was restricted. It is submitted that this led to a misunderstanding of the evidence and a failure to take into account the actual evidence as opposed to that summarised by the Tribunal.
33. Criticism is also made of the fact that the Tribunal failed to recognise that the evidence presented was not merely that it had worked on Y and so should continue, but that ABA was the only method that had proven successful with Y and was an essential ingredient in his learning diet.
34. So far as the question of the number of approaches is concerned, the criticism is made that the Tribunal did not comply with its duties to give the parties an opportunity to comment on its thinking and to challenge it. Reliance is placed on observations by Beatson J in the case of L v Waltham Forest [2003] EWHC 2987, when, amongst other things, he said this:

"... a specialist Tribunal, such as the Special Educational Needs and Disability Tribunal, can use its expertise in deciding issues, but if it rejects expert evidence before it, it should state so specifically ... where the specialist Tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it."

Complaint is made that, as a result of the approach taken by the Tribunal, neither the appellant nor the witnesses had a proper way to respond.

35. A similar point is that it is submitted that SENDIST erred in rejecting the validity of the assessments carried out on the appellant's son by the appellant's experts on the basis that they were not formal observations. It is said that the Tribunal failed to give proper consideration to the assessments carried out with regards to Y, and was wrong to direct that, as they were not formal observations, they should not be taken into account. It is said that Tribunal attached less weight and credibility to the appellant's expert's conclusions as a result of taking an incorrect and unfair approach to the manner of their investigations and the purported absence of formal assessments.
36. Counsel for the respondent rejects those criticisms. He submits that the Tribunal's reasons for deciding that the parents had not shown that his needs could not be met by ABA were full and clear, and he points to what is said about Ms McDonald in paragraph 9 and to the evaluations conducted in paragraph D. He submits that the Tribunal explained in its decision why it had found the parents' expert evidence unconvincing and that this was a matter for the Tribunal. He says that the reports of Ms McLean and Ms Venugopal did contain assertions not based on testimony, and that these were fair conclusions for the Tribunal to draw. He also relies on the fact that the Tribunal asked questions about these matters before reaching conclusions.
37. So far as the assessments are concerned, he submits it is entirely unsurprising that the Tribunal was concerned about the nature and quality of the evidence in support of that particular part of the appellant's case. In particular, there was no formal assessment showing the applicant's rate of progress when he was in ABA with any observational evidence. He submits that this was not evidence being rejected out of hand; its persuasive value was properly elevated and the Tribunal, as it was entitled to do, found it unconvincing.
38. So far as those particular criticisms are concerned, it seems to me that the position is as follows. First, reference by the Tribunal to children in general did not mean they did not have their eye on the ball; they were applying their expertise with other children in other cases, and possibly in their own professional backgrounds to the facts of the applicant's case. They clearly had their eye on his needs.
39. Next, the case citation from Waltham Forest needs to be seen in the light of the remarks made by the Court of Appeal in the later case of Leeds to which I referred earlier. Complex considerations can arise when intuition formed by experience in specialist areas is applied to the deciding of cases, whether by Tribunals or indeed by judges in specialist courts. Now is not the time to explore those issues in detail. But there is a difference between simply using specialist knowledge to displace a witness's assessment of the position, by substituting your own views and reaching conclusions without giving anyone the opportunity to respond on one hand, and on the other hand, using your specialist expertise to help decide which of two conflicting courses supported by evidence should be preferred. It seems to me quite clear when you read the decision as a whole that the Tribunal was doing the second not the first and was entitled if not obliged to do so.
40. The other criticisms fall away when one bears in mind the function of Tribunals and the requirements for their decisions which I mentioned earlier. So, in my judgment, there is no error of law shown by points 2 or 3 either.
41. The fourth ground upon which an error of law is said to arise is that it is said that SENDIST placed undue weight on the evidence of the head of Turney School. Mr Rawlings refers to paragraph C of the decision, and makes criticism of the weight given to what she had to say by the Tribunal. Mr Oldham says that the question of weight of Mrs Adams' evidence was entirely a matter for the Tribunal, which recognised the limitations, as I have spelt out when reading out from the decision.
42. In my judgment, the weight of evidence is entirely a matter for the Tribunal. The Tribunal had the material before them. They saw these witnesses. They asked them questions. They weighed them up and reached conclusions applying their experience, judgment and judicial qualities. That is precisely what they are there to do. It was inevitable that they would form a more favourable view of the recommendations of one witness than that of the other. That was their job. I emphasise that it is not a question of the Tribunal having to decide about truthfulness of the facts; they are evaluating something different. I say that so that it is clear that there is no suggestion that there has been any finding by a Tribunal of any lack of truth on the part of the appellant's witnesses, who were clearly putting forward their honest and professional views.
43. The next matter about which complaint is made concerns section 9 of the Education Act. It is submitted that SENDIST erred by failing to apply their minds to section 9 in relation to the wishes of the parent and the comparative costs benefit of that placement. It is pointed out that section 9 provides for LEAs and therefore SENDIST to have regard to the wishes of parents when placing children, subject to the caveats of ensuring that children receive sufficient instruction, and that complying with parental wishes is not incompatible with reasonable public expenditure. Section 9 applies to this case and regard is to be had to the principle that education should be in accordance with the parental wishes, unless that involves unreasonable public expenditure. The Tribunal's task is to undertake a specific evaluation of comparative costs and benefits where two placements are appropriate. It is submitted that the Tribunal failed to do this, and comparison is drawn with the case of Wardle Heron, where the learned Deputy Judge in another case remitted the matter to the Tribunal when there was a costs differential between £5,641 under one option and something near £12,000 on the other. It is submitted that, in this case, there was no challenge to the appropriateness of the appellant's choice of school so a specific evaluation was required. In particular, complaint is made that the Tribunal order compelled the local authority to fund a one-time full-time one-to-one learning support assistant at 32.5 hours per week for Y, but should have attempted to cost this before reaching conclusions and doing the exercise which requires to be done under section 9.
44. Mr Oldham points to the fact that Y's counsel before the Tribunal conceded that the cost of Rainbow School, the private alternative, was far greater than that of Turney School so that the question of whether it could meet the mother's needs was irrelevant, and he accepted that he had to show that Turney School could not meet those needs. It is submitted that he was right to concede that, if Turney School met those needs, it had to be named in the statement on costs grounds.
45. As I said earlier, the concession made by counsel given the great disparity of costs was correct. It was suggested that the Tribunal, because of the fact that it has inquisitorial powers, should have gone behind that and done an exercise of its own. That submission is misconceived. The case before the Tribunal was that containing the concession. The disparity was an obvious and considerable one, and the result of the exercise almost self-evident.
46. So far as the provision of the extra 32.5 hours is concerned, the change reads:

"The school would be provided with additional resources of 32.5 hours per week and a learning support assistant who will support [Y] on a one to one basis. This provision will be reviewed at his first annual review."

Even if one took a high cost for that temporary provision the disparity would still be an overwhelming one. So for those reasons, there is no error of law on that point either.

47. Ultimately, as I said at the start, the fundamental question for the Tribunal was an evaluation of whether the absence of an ABA programme would mean that Turney School would not meet Y's needs. There was a careful evaluation of the material and of the witnesses' specialist expertise by the Tribunal. In my judgment, they reached sound conclusions which were well reasoned and not susceptible to successful appeal or review. There was no error of law in any of the respects alleged.
48. It follows that there will be judgment for the respondent.
49. MR OLDHAM: My Lord, I am very grateful. My Lord, I think it follows that your Lordship should order that the appeal be dismissed. We do have an application for a costs order, but we recognise, as I think is the case, my learned friend's client is legally aided on a nil contribution. I think in the past that would have been a football pools order; I think the practice currently is that one seeks an order for costs and then simply does not enforce it. I am aware different courts may do different things.
50. THE DEPUTY JUDGE: I have to say the Commercial Court has no relevant experience, and I do two or three weeks a term in this court, and it is whatever you both say is appropriate.
51. MR RAWLINGS: My Lord, I understand it is an order granted, but not to be enforced without leave of the court.
52. THE DEPUTY JUDGE: If that is all right by you, it is all right by him, so I will make.
53. MR RAWLINGS: I also need an order for the taxation of the appellant's costs pursuant to the Legal Services Commission Funding Code. It is part of the same process, which is public funding.
54. THE DEPUTY JUDGE: Certainly. Richly deserved.