England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		10 November 2009

MR JUSTICE FOSKETT: Mr Ward, you represent Ofsted?

MR WARD: Yes.

MR JUSTICE FOSKETT: Instructed by the Treasury Solicitor. As you know, I received a letter from your instructing solicitor at about 2.15pm on Friday, which was copied to all the other parties, raising a matter of some concern in the case. It is that that has led me to direct this morning's hearing. You kindly told my clerk early on during Friday to anticipate a letter, and I am grateful for that.

Given the high profile nature of this case, it seems important that everyone should know what the letter said and we will come to talk about it in a moment. I will read it out so that members of the public and others can hear what it said. It was from the Treasury Solicitor on Friday afternoon. It reads:

"We are writing to alert the court and the parties to the fact that material held by Ofsted has come to our attention that we understand was not considered as part of the preparation of Ofsted's case for trial. We are in the course of seeking to ascertain the full extent of such material and the extent to which it is relevant to the issues before the court in order to ensure that Ofsted's duty of candour is fully discharged. We anticipate being able to complete this exercise by the end of next week. As soon as we have done so, we will write to you again.

We very much regret that this situation has arisen and apologise unreservedly for it and for the inconvenience that this causes to the court and the parties."

Mr Ward, we will discuss shortly what lies behind that letter, but in view of the high level of interest that there is in this case I think it is important to say publicly what the duty of candour mentioned in the letter involves.

You and I know that all parties in judicial review proceedings have a duty of candour to each other and to the court. So far as a claimant is concerned, there is an obligation to make full and frank disclosure of all material facts, including any possible impediments to the obtaining of relief on an application for judicial review. Defendants to a judicial review application also owe a duty to make full and fair disclosure of all relevant material, including any material that might undermine or be adverse to its own position in the litigation and/or that might support the position of the claimant. That obligation extends to matters that go beyond the pleaded grounds in the claim form.

Again as you and I know, that nature has been variously described in the higher courts, but it has been described as a very high duty and one which is vital so that judicial review proceedings can be conducted "with all the cards face upwards on the table". It is a continuing obligation and if, for example, documents are discovered even after the hearing has concluded, the obligation to make appropriate disclosure continues. It is, as I understand from what I have seen so far, that that is what has happened here.

Whatever other comments may have to be made, let me make it quite clear that you and those instructing you have acted quite correctly by bringing this to my attention.

I have seen the letter from your instructing solicitor sent to all parties yesterday. I saw that this morning. There has, as I understand it, been discovered thus far additional material from three out of the four witnesses who provided witness statements for Ofsted in these proceedings. Those three people are Miss Ryan, who was the Deputy Lead Inspector, Mr Pullen and Mr Hart. Again, as I understand it, the following has now been discovered: firstly, handwritten notes of Miss Ryan -- and I gather she is providing a transcription of those notes; some e-mail records of Mr Pullen and other contemporaneous notes, together with a transcription, I understand, prepared by him; and thirdly, an e-mail sent by Mr Hart to Miss Heather Brown, who was the Lead Inspector on 16 December 2008.

As I understand it, amongst the papers now discovered by Mr Pullen are copies of drafts of the Ofsted report itself. In other words, there is material that may demonstrate how the final version of the report came to emerge.

As I understand it, in relation to that documentation the claimant's advisers made a request for the disclosure of any drafts of the reports and any comments received on those drafts from within or outside Ofsted on 21 August.

The Treasury Solicitor, as I understand it, answered that request on 8 September, saying that these materials were not relevant to the issues and that their provision was not "reasonably necessary and proportionate" to enable the claimant to prepare her case. There was no suggestion, as I understood the letter at the time, that they did not exist; merely that they were not relevant.

The request was repeated, as I understand it, in a letter from the claimant's solicitor dated 21 September. I am not entirely sure whether that request was addressed specifically subsequently.

Then apparently on the last day of the hearing, which was 12 October, the claimant's solicitors wrote again asking for copies of the drafts of the emerging Ofsted report together with "successive drafts of the 2008 annual performance assessment for Haringey" because, as I understand it, suggestions had emerged that that assessment had been altered in some way.

So far as the drafts of the Ofsted report itself was concerned, that was responded to by letter from the Treasury Solicitor on 13 October repeating the contention which I believe had been made previously that the claimant's solicitors had provided no explanation as to why the documents were relevant or necessary. That letter, however, ended with the following sentence:

"We are instructed that Ofsted has been unable to locate any further drafts."

Mr Maurici expressed some surprise at that contention in his written closing submissions, but the matter was left there, as I understand it.

As you will probably know, I was made aware of that bit of correspondence and I believe I communicated to all counsel that I could proceed only on the basis of the material before me, and I think everybody accepted that.

So there matters have rested as far as I have been concerned. Leaving aside the relevance or otherwise of the drafts of the Ofsted report, the fact is that one set of drafts has now been discovered and, as I understand it, has now been disclosed or is in the process of being disclosed, and then there are the other documents which I have mentioned.

The first question I have for you at the moment, Mr Ward, is this. The Treasury Solicitor's letter on Friday suggested that the exercise of checking that the duty of candour had been fulfilled would take until the end of what is now this week. Does that still obtain?

MR WARD: No, my Lord. I can explain what has been done.

MR JUSTICE FOSKETT: Fine. Can I take it for present purposes then that in a sense that which was revealed from your instructing solicitors yesterday represents the end point of the inquiries so far as Ofsted is concerned?

MR WARD: Yes.

MR JUSTICE FOSKETT: I think -- I suspect others may have similar questions -- but I think I need to know because of the way things have happened as to precisely who has been asked what and I want to be absolutely certain that every relevant person who could conceivably have been asked for material has been asked and they have conducted the relevant searches. If they have been in doubt about whether the document is relevant or not, whether they have taken advice about it. Can you help me a little bit about what has actually been going on and why you say that you can be satisfied that the process has now run its course as it were?

MR WARD: Well, my Lord, if I may I would like to start by reiterating the unreserved apology on the part of my clients to the court and to the other parties for the late disclosure that is now being made. As your Lordship has already noted, my clients' concern now is simply to ensure that the duty of candour is fully discharged. What I will do is to explain to your Lordship the steps that have been and perhaps, if I may, just correct one point of detail of what your Lordship has just said.

MR JUSTICE FOSKETT: Yes.

MR WARD: In view of your Lordship's comments, it obviously would not be helpful for me simply to go through the letter of yesterday evening.

MR JUSTICE FOSKETT: Well, I hope that I have summarised the heart of it accurately. If I have not, then please say so.

MR WARD: You have, my Lord. There is just one point of detail which is simply, as we explained in the letter, the third category of documents that you mentioned, namely Mr Hart's e-mail. It was actually not in a sense a new document. It had been in the papers. In the rush for preparing his reply evidence, it had not been referred back to him at that stage.

MR JUSTICE FOSKETT: Yes, I understand.

MR WARD: It seemed appropriate that it should be dealt with in the context where we now find ourselves.

MR JUSTICE FOSKETT: Right. But the rest of it was new?

MR WARD: The rest of it was new. My Lord, essentially what has happened, in the light of the discovery in respect of Miss Ryan's notes -- or, more accurately, the scope of those notes -- inquiries were then made by Ofsted of the inspection team, to make sure that there was nothing else. By "inspection team" I mean all the witnesses who gave evidence before your Lordship, the other Ofsted inspectors and Ofsted management who had direct involvement in the inspection process itself. So not just the people that your Lordship has heard from, but I believe two other people in Ofsted who had some involvement in the process, albeit on the periphery.

MR JUSTICE FOSKETT: I think that there was evidence that there were nine Ofsted representatives or inspectors who took part in the field work exercise, unless I misrecollect --

MR WARD: I am not sure that nine is the right number, my Lord, but if I may just think out loud, there were the three inspectors from whom your Lordship heard --

MR JUSTICE FOSKETT: Yes.

MR WARD: There was Pat O'Brien --

MR JUSTICE FOSKETT: Yes.

MR WARD: -- who has been on a career break for the whole year and has played no part in these proceedings.

MR JUSTICE FOSKETT: Yes.

MR WARD: But I have had it confirmed that during the litigation she was contacted directly and asked to provide any documents or e-mails that she retained, and that she had none, and that Ofsted themselves have again checked over recent days to ensure that there were no further documents held in respect of Pat O'Brien's activities and have confirmed that there are not.

In addition, there were two other Ofsted inspectors who have also been asked to confirm that they hold no material. Then beyond that the reason that your Lordship gets to nine is that there were inspectors from the Home Office in respect of health.

MR JUSTICE FOSKETT: Oh, I see.

MR WARD: And as their part of the inspection has not featured in the litigation there has not been an attempt to obtain documentation, and of course the focus of the case before your Lordship is firmly on the local authority. So those are the checks that have now been conducted. In addition, a review was made of the papers that were in house, which is how Mr Hart's e-mail action came to light.

So that is where we are, my Lord. Mindful of your Lordship's clerk's letter on Friday, we essentially have brought the process forward as fast as we can. I would accept immediately that one might conceivable do more than has been done. It does not amount to an absolutely comprehensive top to bottom order of the organisation, but what we wanted to do this morning was to come to your Lordship to explain what we have done and then, of course, if your Lordship or the parties insist that further steps should be taken, then of course they will be taken.

MR JUSTICE FOSKETT: Well, I will have to hear from everybody about all this in due course, but speaking entirely for myself at the moment and trying to get a sense of this particular case, it seems to me vital that everything that all avenues that ought properly to be pursued are pursued. It is not fair on any of the parties that a decision is made without the full availability of information and, frankly, it is not fair on me either.

MR WARD: Yes. If I may, my Lord, just characterise where we were, we wanted to get to the position where we could show your Lordship the immediate steps that had been taken --

MR JUSTICE FOSKETT: Yes.

MR WARD: -- and, moreover, to bring forward the process as rapidly as possibly in light of your Lordship's letter --

MR JUSTICE FOSKETT: Yes. Because the members of the public may not know what was in that letter, let me say that what informally and confidentially to counsel was indicated on Thursday was that I hoped to be in a position the hand down judgment on Friday of this week. That plainly is now out of the question. It was proposed that that would be communicated to everyone yesterday provided that by yesterday I was in a position to do so. I imagine it was in the light of that that your instructing solicitors and others have as it were put the foot on the accelerator.

MR WARD: Absolutely.

MR JUSTICE FOSKETT: But I have to say that because Friday plainly has to go now as part of the timetable that I had in mind, I think -- taking a more relaxed view is not the expression I think I would want to use, but I would want to take the opportunity of any further time that is now thrust upon me and thrust upon everybody else to ensure that all relevant avenues have been pursued. So we will come back to what else might need to be done in the more ideal situation in a moment, Mr Ward.

MR WARD: Yes.

MR JUSTICE FOSKETT: But anyway you indicate to me that matters have been progressed as quickly as possible?

MR WARD: Yes. Yes, certainly.

MR JUSTICE FOSKETT: Is the position this, that, given a bit more time, there would be other avenues that you think it would be appropriate to ensure, so far as one ever can, that all relevant avenues have been pursued?

MR WARD: I cannot personally offer an assurance one way or the other as to that question, my Lord. I can certainly say that my clients have been made well aware of the need to ensure that all possible relevant material is put before your Lordship and the parties and that those are the steps that have been taken thus far. I can obviously take specific instructions on those points. What I cannot do is to say categorically that there was simply nothing more that could possibly be done.

MR JUSTICE FOSKETT: No. All right. We may have to look at that because I just think now that this matter has arisen in the way that it has, I do not think that it is possible to leave matters even only 90% done.

MR WARD: No. My Lord, I fully accept what your Lordship says.

MR JUSTICE FOSKETT: Right. I understand what you say now. I would like to know a little about why it has taken until Friday for this to emerge because, whilst not everybody would have appreciated that Friday was what I was trying to work towards, I imagine that most of the lawyers will have appreciated that, come the end of this week, I leave London and am not back for some considerable time. In fact, I am not back until the middle of February. That does not mean to say that arrangements may not be made for other hearings or other representations to be made, but that is my schedule at the moment.

MR WARD: My Lord, we are acutely conscious throughout this exercise of the need to resolve it as quickly as we possible can. We are mindful that your Lordship's judgment is pending. We are also mindful that this case places an immense burden on everybody involved, particularly the claimant, of course, whose stake is more personal than anybody else in this case. Nobody was under any illusion but that it needed to be dealt with as quickly as possible. Nor, I think it is fair to say, did any of us expect that it would take until today to bring matters to a resolution.

If I may, I will just explain briefly now what the key events in the chronology were.

MR JUSTICE FOSKETT: Yes, please.

MR WARD: The first matter that came to light was the handwritten notes of Miss Ryan, as your Lordship will have seen from the letter. What happened, as the letter explains, is that on 22 October a lawyer who was new to Ofsted's legal team saw the notes -- came across the notes at Ofsted. She had not personally been involved in the preparation of Miss Ryan's first witness statement. Your Lordship will see that this is explained on the second page of the letter.

MR JUSTICE FOSKETT: Just a moment. (Pause)

MR WARD: Is your Lordship looking for Miss Ryan's witness statement?

MR JUSTICE FOSKETT: No, I was just looking for the letter. I have not brought all the witness statements over with me.

MR WARD: I have the relevant page.

MR JUSTICE FOSKETT: Just tell me what the position is.

MR WARD: As she explained on the second page of the letter, the original notes -- Miss Ryan's original notes -- came to the attention of the new member of Ofsted's legal team. Now, it is not the case that these notes were completely unknown. They are actually referred to in Miss Ryan's first witness statement, but in a very limited context. Would it actually assist if I were to show your Lordship that page?

MR JUSTICE FOSKETT: Please, yes.

MR WARD: I will just hand this up.

MR JUSTICE FOSKETT: There was a suggestion that a bundle of documents would be prepared for this morning.

MR WARD: It is literally being photocopied now.

MR JUSTICE FOSKETT: I see.

MR WARD: My Lord, this is nothing new. This is what your Lordship has already seen.

MR JUSTICE FOSKETT: Yes.

MR WARD: At paragraph 7 Miss Ryan says: "Heather Brown's witness statement makes reference to a document which I prepared for the purpose of this litigation entitled 'transcripts" -- and I emphasise that word -- "'of daily briefing meetings with the DCS' and explained the nature of that document. It is a transcription of notes I made at the daily briefing meetings that were held with Miss Shoesmith during the inspection. For the purpose of this typed document I organised the notes into columns". Then at paragraph 8: "These notes do not, however, record everything that was said."

Just to remind your Lordship, the next page is a copy of the first page. I am sure it is a familiar document.

MR JUSTICE FOSKETT: Yes, I remember the document.

MR WARD: Your Lordship will see the word "transcript" in the third line of the heading.

MR JUSTICE FOSKETT: Yes.

MR WARD: What happened was that the new lawyer in Ofsted's team found the notes of Miss Ryan and looked at that part of the notes and saw there was potentially a discrepancy, and also that the notes seemed to go much wider than merely what was in this table. She then forwarded those notes to the council on Friday the 23rd. On Monday and Tuesday of the following week, conversations were had by my learned friend by Mr Lask with Miss Ryan and Ofsted lawyers in an effort to start to understand what the notes really contained. They are difficult to read. The handwritten notes were taken for personal purposes and, while parts of them are legible, large parts of them are not. So it was immediately apparent that a transcription would be needed if the notes were to be served and indeed if Ofsted were to understand what the notes contained and what their potential relevance or their importance would be. So with Miss Ryan's co-operation a transcription was prepared, but it took actually until Thursday 5 November to be complete. The notes are approximately 70-odd pages long. There were a number of unexpected difficulties encountered during the course of transcribing them. But I think it is fair to say that nobody involved had any idea that it could possibly take so long to obtain a workable transcript made available. Efforts were made to help Miss Ryan with a typist and so on and so forth. The reality is that it took until last Thursday for the entirety of the notes to be transcribed.

MR JUSTICE FOSKETT: I understand that. At the moment I do not quite understand why a member of the legal team -- is this a member of the Treasury Solicitor's office?

MR WARD: It was Ofsted --

MR JUSTICE FOSKETT: Was at Ofsted on 22 October. This was post the hearing.

MR WARD: It was an Ofsted lawyer.

MR JUSTICE FOSKETT: Oh, I see, an in-house?

MR WARD: An in-house Ofsted lawyer. What was your Lordship's question?

MR JUSTICE FOSKETT: I was just wondering why people were looking at the documents at that stage.

MR WARD: Can I just confirm? I believe I know the answer. (Pause to take instructions) A freedom of information request.

MR JUSTICE FOSKETT: Oh, I see. I understand.

MR WARD: So a search of documents was being made for that purpose.

MR JUSTICE FOSKETT: So it was not specifically to do with this case?

MR WARD: No, there was no reason at all at that stage to believe that anything had gone wrong in this case. So in the course of that, the lawyer in question found these notes and thought it right, as it clearly was right, that we should be alerted to their existence.

MR JUSTICE FOSKETT: Yes.

MR WARD: And obviously it is a matter of great regret that the transcription process took until Thursday 5 November, but there was an understandable reluctance simply to serve them before even my clients had understood what they contained, recognising as well that it was simply inevitable that anybody seeking to make sense of them would require such transcription. So that, in truth, explains the length of the delay that has occurred in this case since this first came to light.

Now, it is also right to say that Mr Huggett, on behalf of the Treasury Solicitor, contacted your Lordship's clerk on 27 October, which was the following Tuesday, to seek to establish whether your Lordship's judgment was imminent and, as Beachcrofts say in their letter, "Why at that stage did you not at least warn people that something was going on?" With hindsight we do see the force of that criticism, but I think it is fair to say that if we had had any inkling at that stage that it might take as long as it has to resolve matters, then more would have been done. It was believed at that stage that disclosure would be imminent. It just has not happened that way because of the difficulty in the transcription.

The second element in the disclosure is the material from Mr Pullen. There what happened was that once Miss Ryan's notes had come to light, Ofsted were asked to make urgent inquiries in order to see whether anything else relevant might exist, and that was done right at the beginning, on Tuesday 27 October once it had become clear from conversations with Miss Ryan that there were concerns. Mr Pullen, unfortunately, was away that week. He returned to work on the following Monday, which was 2 November. Then it was 4 and 5 November that he provided to Ofsted the material which has now been disclosed to your Lordship. In the meanwhile, a clean bill of health had been obtained from all of the other officials that I have mentioned who were involved in the inspection.

MR JUSTICE FOSKETT: Right.

MR WARD: At the same time, this issue was raised with Mr Hart.

MR JUSTICE FOSKETT: You are going to explain to me how Mr Huggett was able to write the sentence in that letter of 13 October -- I have forgotten the precise phraseology -- that they have been unable to locate any of the drafts of the report?

MR WARD: Because at that time Mr Pullen's new material was unknown to the lawyers who were acting for Ofsted.

MR JUSTICE FOSKETT: But it begs the question: were they asked?

MR WARD: Who was asked? Well, what I can say at this stage, my Lord -- and it may be that your Lordship will want a better answer -- but what I can say now is that it is understood that all of the inspectors and others directly involved in the inspection, such as Mr Pullen, had been asked by Ofsted for potentially relevant material during the trial process in the usual way, and indeed a quantity of material had of course been obtained. But as to the specific question of why it was not known that Mr Pullen held this additional material, I cannot assist your Lordship any more than that. If a more detailed explanation is needed, it will have to be given.

MR JUSTICE FOSKETT: Well, in my recitation of the background, as I understood it from the documentation -- and I am open to be told that I am wrong (and I leave aside all questions of relevance for the moment) -- a request for the drafts of the Ofsted report was made back in August on behalf of the claimant and indeed it was repeated. As I understand it, the general attitude at that stage was to say: "This is irrelevant and therefore we are not going to take this any further" as far as Ofsted was concerned. There was no suggestion at that stage that the documents did not exist. It was merely put forward on the basis that they were not relevant, it was not proportionate, and so on. It was only then on 13 October that there was a clear suggestion that no such documents existed or no longer existed. I would like to know whether the question had been raised at an earlier stage and the answer "No" given because that seems to be the logic of it, that back in August somebody must have said, "Have you got the drafts of the JAR?" "No, no, we have destroyed all those. We do not bother to keep them".

MR WARD: My Lord, I will take instructions now and see if I can obtain an immediate answer, otherwise clearly an answer will have to be given, but before I do, if I may just reiterate the broader point, which is that Mr Pullen and others have been asked for anything potentially relevant and that what has actually happened here, as the letter explains, is that it appears that Mr Pullen has discovered a folder of e-mails on his computer that had previously been overlooked. He had been asked at a general level, but whether or not Mr Pullen personally was ever asked a specific question about drafts, if I may, I will just see if I can obtain immediate instructions.

MR JUSTICE FOSKETT: Yes, I would like an answer to that question. If it cannot be given now, then I will expect to have one in due course.

MR WARD: Yes. Would your Lordship give me a moment?

MR JUSTICE FOSKETT: Yes, of course.

MR WARD: (Pause to take instructions) My Lord, those behind me think the position is that, although he was asked for relevant material in a general sense, he was probably not asked that specific question: "Do you have any drafts?" My Lord, I will ask those behind me to confirm in writing, on full reflection and on inquiry, if that really is the true position.

MR JUSTICE FOSKETT: Yes. As I say, I would like an answer to that.

MR WARD: Yes, of course.

MR JUSTICE FOSKETT: Anyway, the bottom line is that they have now emerged --

MR WARD: They have now emerged.

MR JUSTICE FOSKETT: -- from him.

MR WARD: From him.

MR JUSTICE FOSKETT: I suppose the comment might be made: well, if he has drafts, what about the others? The position is that they all say they have not?

MR WARD: They all say they have not. They all say that there is nothing further to be provided.

MR JUSTICE FOSKETT: But the question has not just been put: "Do you have anything relevant?" Everybody's perception of relevance is difference. I would like to know that Miss Brown has been asked, that Mr Hart has been asked and that Miss Ryan has been asked: "Do you have drafts of the report?"

MR WARD: My Lord, for the absolute avoidance of doubt, we will ask that question today.

MR JUSTICE FOSKETT: Yes.

MR WARD: I think the answer that I will get is: not specifically but implicitly in the broader request for information. But in order to set that matter straight definitively and do exactly as your Lordship asks, we will ask the specific question about drafts. Would your Lordship give me a moment?

MR JUSTICE FOSKETT: Yes, of course.

MR WARD: (Pause to take instructions) In fact, I am told that that has already been done. That has already been done.

MR JUSTICE FOSKETT: All right.

MR WARD: Miss Brown, who is behind me, says that since Mr Pullen's drafts came to light, that specific inquiry has been made and the answer is that there are no others.

MR JUSTICE FOSKETT: Right. Anyway those that have now been found are in the process of being copied for disclosure, as I understand it.

MR WARD: Yes.

MR JUSTICE FOSKETT: Right. I am sorry, I probably interrupted your narrative of the way things have emerged. You told me about the way Miss Ryan's notes have emerged and the difficulties of transcription, how that then led to Mr Pullen's notes, and you say as far as Mr Hart's e-mail is concerned, it was there in the background?

MR WARD: Yes, and I think that does complete the picture. During the course of that period the inquiries with the other inspectors had taken place in the manner I have described to your Lordship.

MR JUSTICE FOSKETT: Yes.

MR WARD: Then when my clients received the letter from your Lordship's clerk on Friday, they recognised the immediate need at least to come forward with everything that there was there and to be able to explain what had been done.

MR JUSTICE FOSKETT: Yes.

MR WARD: I have sought to be as precise as I can be about what has been done, while recognising that of course ultimately there could be, in theory, other steps taken. But we were also conscious that your Lordship had indicated that your Lordship wanted to give judgment and somewhere one has to say: "Well, where is the right balance to be struck in terms of how much more should be done and the inevitable delay that that will cause?"

MR JUSTICE FOSKETT: Yes. I am content on the basis of what you say with what you have done so far.

MR WARD: My Lord, I want also to make clear that my clients are very happy to undertake whatever steps your Lordship thinks would be appropriate, of course having heard from my friend.

MR JUSTICE FOSKETT: Yes. That will in due course will be done. All right. I understand where you stand at the moment. We will have to see where we go from here.

MR WARD: Can I assist with anything further at this stage?

MR JUSTICE FOSKETT: I think not at the moment. You may have more things to field in due course, Mr Ward, but thank you so far.

MR WARD: Thank you.

MR JUSTICE FOSKETT: Mr Maurici, in one sense this obviously does affect, or could potentially affect your client. It might also affect other parties as well. I am going to invite everyone else -- is Haringey represented today by counsel?

MR WARD: Not by counsel today, not.

MR JUSTICE FOSKETT: But representatives of Haringey are here, I take it, are they? Yes. Good. Yes, Mr Maurici? I have seen your instructing solicitor's letter, as you will have appreciated, yesterday.

MR MAURICI: Yes. My Lord, these developments are a source of very considerable concern for Miss Shoesmith, and indeed for us. My Lord, it is impossible for me to make any detailed response until we have seen the material and had a chance to consider it. My Lord, Ofsted's letter of yesterday, and indeed the submissions that Mr Ward has just made, does make it sound as if the documentation is going to be quite voluminous. I say that because there is reference to draft records of evidence. You will remember that that is itself a very detailed and lengthy document. Drafts of the report, and of course the handwritten notes and transcription of notes from the inspection. Miss Ryan's notes, we have just been told, are 70 pages long as well, of course, as other witness statements. My Lord, clearly we are going to need to time to consider that.

My Lord, I do want to make these observations, if I may. The letter and Mr Ward's submissions clearly indicate, in my submission, very serious failings on the part of Ofsted in relation to its duty of candour and its responses to our requests for information. My Lord, I say that because the actions which appear to have been taken quite frantically in the last few weeks to try to obtain these documents, in my submission, were actions which should have taken place at a much earlier stage in the proceedings.

My Lord, just pausing there to think about the sources of this material, my Lord, in relation to two witnesses at least who gave detailed accounts of the inspection in the witness statements -- Miss Ryan and Mr Pullen -- they apparently failed to disclose to their lawyers their own handwritten notes of the inspection. They must have known that these things existed and we say that it is very worrying that this is what has transpired.

My Lord, secondly, Mr Pullen has apparently now, we are told, searched and found an e-mail with all manner of relevant material, including drafts of the JAR. My Lord, in my submission, nothing has been said about why that exercise was not done before. My Lord, I have been involved in disclosure exercises for a number of public authority defendants and in the modern world the first thing that one does now is an electronic search of e-mail reports. My Lord, I am simply at a loss to understand why this exercise was not done previously.

My Lord, I will not say more about any of that for now, but the real question is: how do we proceed? My Lord, obviously the material needs to be disclosed and we understand that it will come today. My Lord, I do say this: it is not right at this stage, given how far we are, that it should simply be provided and left for us to plough through with no more from Ofsted. My Lord, what I am proposing is that Ofsted should be directed by, I say, tomorrow, but certainly in a very short period of time, to produce a note setting out how and why they regard these materials to be relevant either as supporting their case or as possibly assisting ours. My Lord, it is not right that here we are, post-hearing -- judgment is of course imminent -- that we should be left to do this exercise in full without any indication of why it is they consider these documents of relevance. My Lord, I do not think it is an overly onerous task to ask them to indicate in a note why they say these documents are relevant.

My Lord, we then need to respond to them, and, of course, I cannot say how long that is going to take until I have seen the material. My Lord, also neither myself nor my instructing solicitors are able simply to drop our other commitments and turn to that immediately.

My Lord, of course, going further than that, one possible outcome of the material is that we remain unsatisfied that there has been full disclosure, such that we want to seek further disclosure or renew some of our previous requests; or indeed, my Lord, make other proposals in order to ensure that there has been full disclosure. My Lord, I simply moot this -- I am not suggesting it for the moment -- but one thing I have been considering is whether Ofsted should be required to make full standard disclosure by list in accordance with the Civil Procedure Rules. I am not asking for that now because I need to see the documentation and see where we stand after that.

My Lord, I hope all of that is not going to happen. I hope that we are not going to have to pursue further applications or further requests for documentation. But, my Lord, given what we say are the failings that have been disclosed by Ofsted's letter, my Lord, I have to say -- and I do not pull any punches in this regard -- that we do not retain very great confidence that Ofsted can be relied on now to ascertain that all relevant material has been disclosed.

My Lord, I have almost finished, but can I just briefly state these things while they are in context? They are points of which your Lordship is well aware, and indeed, in fairness, Mr Ward has already referred to some of them. My Lord, I act for a single individual. The pressures of this litigation on her have been, I would suggest, unimaginable. We also, as we made clear from the beginning, have limited funding. We have ranged against us three defendants. My Lord, you have already had my submissions as to the way in which these proceedings have been conducted by those defendants --in particular, as regards repeated late evidence. My Lord, this further adds concern to those concerns that we already have.

My Lord, I also want to say this by way of context. My Lord, you will have seen in the clip of correspondence that we provided attached to our letter of yesterday -- in that clip of correspondence at page 4; this is from our earlier requests for disclosure from Ofsted --

MR JUSTICE FOSKETT: Yes.

MR MAURICI: -- at the bottom of that page of that letter --

MR JUSTICE FOSKETT: There is a reference to Al Suedi(?)?

MR MAURICI: My Lord, Al Suedi, yes. My Lord, in that case the Treasury Solicitor was personally summonsed to court to explain, and apparently the Treasury Solicitor then wrote to all permanent Heads of government departments drawing their attention to the course and reminding them of the rigorous nature in respect of duties of disclosure. My Lord, it may be that case came too late to influence the process in this case, my Lord, although, in fairness, it was simply repeating what should have been well-established principles in relation to disclosure. My Lord, I do say that it is a point relevant tot he context here and the explanation about why things have gone wrong that really the defendant and its solicitors should have been acutely aware of the need to make full disclosure at the relevant time and we should not have had to find ourselves in the position that we are in.

My Lord, that leads me on to the final point, which I do not know whether your Lordship wishes to hear me on now? Your Lordship will have seen that we have made an application effectively in the letter that the costs of this exercise -- all the work that we now have to take to this late disclosure by Ofsted in any event -- and on an indemnity basis. My Lord, in relation to indemnity basis I simply say this. The test is whether there has been a significant level of unreasonableness in the conduct of the litigation. My Lord, I do say, for all the reasons we have gone through, that test is met here. My Lord, certainly we do, in my submission, need the reassurance that the additional work that we will now been put to post-trial are not costs that my client will have to bear at the end of the day.

My Lord, going beyond that, of course, I must reserve my position as to the entirety of Ofsted's costs, depending on what emerges from this exercise. My Lord, unless I can assist you further, those are the submissions I would make.

MR JUSTICE FOSKETT: No. We will come back to costs and so forth in a moment. Anyway your submission is that you are asking me to direct that a note be prepared by Ofsted within whatever period of time you think is appropriate to indicate either where they see the relevance or the irrelevance of this documentation to enable you to consider it.

MR MAURICI: So that we are not blind to look at all this new stuff at this very late stage.

MR JUSTICE FOSKETT: Yes. Right. I think you are not asking that I do anything else than that at the moment --

MR MAURICI: No.

MR JUSTICE FOSKETT: -- because you have to consider the material.

MR MAURICI: My Lord, the one thing -- I think your Lordship has parked the question of costs, but I do want to leave here today knowing where costs will fall.

MR JUSTICE FOSKETT: You have only parked it temporarily, Mr Maurici.

MR MAURICI: Yes.

MR JUSTICE FOSKETT: Mr Eadie, do you want to contribute to this?

MR EADIE: My Lord, not other than to say this. Firstly, the explanations as to what has occurred are obviously matters for Ofsted. It may be, particularly in the light of what has been said in court today that Ofsted, no doubt without a direction, would feel it appropriate and sensible to submit a statement of some kind to explain what has occurred; and it might be thought that such a statement would serve the dual function of providing reassurance to the court that the appropriate exercised have now been done, and also of providing the basis for any argument which it might be thought could not properly at least be resolved today, namely the issue as to the costs consequences of what has occurred. It might be thought that it would be very difficult for the court to make all the judgments that might be needed and that might impinge on that issue until it had had a rather fuller explanation as to what had in fact occurred. But that is a matter for Ofsted and for, of course, my Lord.

The second point is this. It strikes the Secretary of State at least as being important, first of all perhaps to Ofsted's credit that they have clearly recognised, albeit belatedly, that documentation in their possession that has come in through this other route of the FOI request is relevant, or potentially relevant at least to these proceedings -- and they have clearly recognised, entirely properly, that the duty of candour is a continuing one, as my Lord pointed out in your opening remarks, that is a principle of very considerable importance, however awkward it may be for the Departments and governmental agencies to come to court late, however embarrassing, whatever the consequences, the duty of candour is paradigm, and if they do discover relevant documents it is to their credit that they produce them.

Thirdly, it is of obvious importance that relevant documentation in their hands is now properly searched for and, to the extent that it is found, is now produced. The court will plainly require perhaps a greater degree of satisfaction that the exercises that have been done have been done properly, given the events that have occurred. But it is plainly, and perhaps of paradigm importance, that that exercise is now fully and properly completed. That does not mean, it might be thought, that everyone starts re-inventing the wheel and does unreasonable things, and spends an extraordinary amount of time doing it. The duty is on departments and governmental agencies, and other parties to litigation, to conduct reasonable and proportionate searches for documents an then to produce them to the extent that they are relevant.

The fourth aspect -- and perhaps the most important one in practical terms -- is to try to devise at least the beginnings of a sensible timetable so that my Lord is assisted within the minimum time frame to reach the point where you can be satisfied that you now do have all the relevant material and that the parties have been afforded a proper opportunity to comment on that.

Of course, I fully accept the point that Mr Maurici makes, which is that it is very difficult for the court to reach a final judgment about that and to more than enter as it were the footholds of the timetable at this stage. But it might be thought appropriate -- subject, of course, to the parties coming back if it turns out not to be appropriate or feasible -- it might be thought appropriate for the court at least appropriate or feasible for the court at least to set a skeleton timetable now. On any view, once this documentation has been produced, the claimant will need an opportunity to comment on it. I make no submissions about the suggestion that Ofsted should start the ball rolling by seeking to explain relevance or, as it was put, irrelevance of some of this documentation. It might be thought that that is not a necessary or a proportionate step. But given that the documentation will only be produced if it is relevant, and given that everyone has very little doubt, the parties will need to comment substantively on what the documents contain. So it might be thought that the sensible course would be for documentation to be produced for a period of time -- of course liberty to apply if it turn out to be too short -- a period of time to be set aside, for example, for the claimants to comment on it, to make whatever case they want on it, and for the parties then to have an opportunity -- another block of time -- to respond to such comments. At that stage, or perhaps in the course of those written submissions, the parties can made whatever other applications or comments they wish about future procedure. So, for example, if it is genuinely thought that there is a real need to trouble the court further by way of oral submissions, those submissions can be made in that initial round of written comments. But it might be thought sensible and desirable for the court at least to set some sort of timetable now for those written comments -- whether it is two weeks or three weeks for the first round, and then a responsive round. It might be thought that it would be sensible for them to be structured as it were sequentially because then the court will have targeted comments in the light of whatever the claimant wishes to say about those documents.

MR JUSTICE FOSKETT: Well, I want to be able to leave London, as I do at the end of this week, knowing that everybody knows what they have to do and within what timescale, and I know when I can expect to receive things.

MR EADIE: My Lord, with respect, we entirely agree with that. As I say, it may be that the only live issue therefore is whether one interposes the Ofsted explanation of relevance. It might be thought that that is not a terribly sensible step to take first because the only disclosures were relevant, and then the claimant --

MR JUSTICE FOSKETT: Well in the letter there is a suggestion that a lot of these things are irrelevant. So I think it is best that this is articulated one way or the other.

MR EADIE: It may be then if you are of that mind, that that can feature in whatever statements Ofsted produce by way of explanation, or the note that they produce by way of explanation.

MR JUSTICE FOSKETT: yes.

MR EADIE: But then the structure, it might be thought sensibly at least, will be in terms of commenting on the substance, that the claimant makes whatever submissions she wishes to make on them and the other parties respond. To the extent that they do not impact, or that she does not wish to make submissions, the thing will drop away. So she is the natural first party to comment as it were, and the defendants can then submit whatever responsive submissions they wish, including matters of a procedural nature, and the court can then determine whether further steps do need to be taken or whether the matter can be left to rest on the basis that all parties have then had an opportunity to comment but in writing.

My Lord, those are my submissions.

MR JUSTICE FOSKETT: Yes. Thank you very much, Mr Eadie.

MR WARD: My Lord, dealing, first, with Mr Maurici's suggestion that Ofsted should indicate what is and is not relevant, in one sense, of course, all of this material is relevant in the sense that it bears in some way or other on the JAR process.

MR JUSTICE FOSKETT: Yes.

MR WARD: That, of course, is why the issue of disclosure has come up. We have explained that what we have not sought to do is to make redactions. So, for example, your Lordship will see in due course Miss Ryan's notes contain pages which deal with the findings of health inspectors which notionally we could have redacted and said, "Well, that is all irrelevant". But what we were anxious to do was avoid anything that would raise more questions than it would answer. We would be much happier for Mr Maurici and his client just to see what it is.

MR JUSTICE FOSKETT: Yes.

MR WARD: So we made no attempt to redact on that basis. Similarly, Mr Pullen's e-mails are in large part anodyne, even if they are in some way related to the inspection. But again, we have not sought to pre-judge that question, and indeed in part, as a matter of the timescale we have been operating, it was thought the fairest thing is to let them have it all.

But what Mr Maurici is asking for, in my respectful submission, would be to open up a whole new area of potential dispute between the parties because it sounded to me as if he was saying that Ofsted should produce a note somehow highlighting the bits of the disclosed material that are of potentially of interest to the claimant, or, I suppose, potentially awkward for Ofsted. But, in my submission, that would be an inappropriate course. It is for Mr Maurici to make whatever case he wishes on the basis of this material, if he thinks any of it assists, and for Ofsted to seek to do it for him would no doubt later only lead to complaints that something had been missed or misconstrued or that somehow Ofsted even now had not done its best job of making a case for the claimant.

So I strongly echo the proposed approach of Mr Eadie. Of course we realise that the claimant must have time to look at this material. Of course they must have enough time to look at it properly and make whatever submissions that they wish. If they raise issues arising out of it, then my clients will do their best to address them, explain them or, as the case may be, acknowledge the force of those points. But it would be quite an odd exercise to ask Ofsted in a sense to do the claimant's work for her. It simply, in my submission, will lead to more dispute, rather than to do anything to speed up the process that we all must now embark upon.

I want just to correct one point of detail in what Mr Maurici said, simply for the record. I am sure it was entirely unintended. In the case of Miss Ryan, she had provided her contemporaneous notes. It is not like Mr Pullen, where those notes appeared for the very first time this week. We did explain that in the letter, and I am sure it was an unintended slip by Mr Maurici to suggest otherwise.

On the question of explanation or further steps from Ofsted, I am entirely in your Lordship's hands as to whatever your Lordship thinks would be appropriate and would assist in the resolution of the process.

MR JUSTICE FOSKETT: Well, let us just address that for a moment. I want to be satisfied in my own mind -- and it is my mind that matters ultimately , though obviously I will be assisted in formulating that state of mind by what everyone else says -- but I want to be satisfied in my own mind that Ofsted has disclosed everything that ought reasonably to be disclosed. You have correctly -- and I commend you all for doing it -- moved things on a pace because of the intimation from me on Friday as to what my plans had been, but I do not want that now to get in the way of doing a proper job, to be absolutely certain that everything is in apple-pie order. So I think what I shall do is give you, I do not know, another seven/fourteen days to satisfy yourselves that the process of ensuring that there is no further documentation that ought to be disclosed has run its full course.

I think what I am going to require is -- we have heard a lot about accountability in this case. I think someone in Ofsted has to be accountable for saying, "We have done everything that we can. We believe that we have fulfilled our duty of candour and that where we have been in doubt, we have sought counsel's advice about it". With that signed by somebody -- and it will have to be someone senior within Ofsted -- and knowing that you and Mr Lask and your instructing solicitor will be in the background giving the advice --

MR WARD: Yes.

MR JUSTICE FOSKETT: -- then I shall be, I hope, satisfied that matters have been dealt with correctly. I will give you fourteen days in which to complete any further exercise of trying to determine whether the duty of candour has been fulfilled. At the end of that period I shall expect to see someone signing a note to that effect. That, as I say, must be a senior official within Ofsted. That is one part of the exercise.

MR WARD: Yes.

MR JUSTICE FOSKETT: The other part of the exercise is obviously to disclose now, or within the next 24 hours --

MR WARD: The bundles are literally being copied.

MR JUSTICE FOSKETT: I will make a direction that it be disclosed by 4pm today, so that all the material that has now emerged is in the hands formally of the claimant's advisers and the other parties' advisers by 4pm today, if that can be achieved.

MR WARD: Would your Lordship give us one extra hour because we have already had an intimation that it might take until 5pm?

MR JUSTICE FOSKETT: Well, let us make it ten o'clock tomorrow morning. Do not worry about that, but the important thing is that it is done and done very quickly.

MR WARD: Yes.

MR JUSTICE FOSKETT: Having heard what you have said -- my mind has wavered a little bit -- I think what really is important, rather than getting into this relevance/irrelevance issue, about which everybody will always have a different view -- and I am not sure how much it will ultimately assist -- I think there should be a short statement from each of these individuals indicating, if necessary just in a witness statement form, how it is that these various items have been discovered and so on, so that it is there in formal form and with a statement of truth at the bottom, so Mr Pullen will be able to indicate how it was that the documents he has disclosed -- but I want one from each --

MR WARD: Certainly.

MR JUSTICE FOSKETT: That cannot be done by ten o'clock tomorrow morning, that I appreciate.

MR WARD: No. The answer is -- if I might just make sure that your Lordship is clear about what that is likely to look like -- in Mr Pullen's case I quite appreciate there is a story to be told.

MR JUSTICE FOSKETT: Yes.

MR WARD: There is no difficulty. In Miss Ryan's case, the answer will be: "Well, I provided these notes at an early stage of the process and after that I do not know what happened".

MR JUSTICE FOSKETT: All right. That is a fair point.

MR WARD: An in Mr Hart's case again --

MR JUSTICE FOSKETT: It was there. All right. I will confine it to Mr Pullen. If matters arise in due course in relation either to Miss Ryan or Mr Hart, then I may insist.

MR WARD: Yes.

MR JUSTICE FOSKETT: But Mr Pullen is to provide a statement -- I will say within seven days. That will give you time to put it together in correct form.

So that is one part of it. The other is this -- and I will come back to the question of how the claimant and the other parties may respond to all that in a moment, but I am insistent on having a full explanation -- chapter and verse -- of how it was that the draft JAR request was dealt with in the way that it was. Again, for present purposes I am not concerned to become involved in arguments about whether it is irrelevant or relevant. The request was made and it was (if I can put it this way) batted away in one particular fashion at the beginning, and then ultimately it was said that reports do not exist and now they do. I want chapter and verse about that.

MR WARD: My Lord, might I suggest that we incorporate that in the witness statement that you have asked for from the senior official taking about the steps that have been done?

MR JUSTICE FOSKETT: If that is the convenient way of doing it, that is fine. It may be that the lawyers will have to contribute to that as well. But I want chapter and verse on that.

MR WARD: Of course.

MR JUSTICE FOSKETT: So that is the timetable. The documentation will be provided by ten o'clock tomorrow morning. That will give Mr Maurici and his team the opportunity to look at it. I am bound to say to you that, subject to anything you say, I cannot see there is any answer to his application for costs of his attendance today --

MR WARD: Certainly not.

MR JUSTICE FOSKETT: -- nor indeed, I have to say, can I see any answer to an application that any costs associated with having to review this new material should also borne by Ofsted. It would have been done during the preparation of the costs had it been available. Quite how one actually reaches the figure in due course, doubtless that will all have to come out in the wash. But I will make it quite plain that I shall in due course -- whatever the outcome of the case -- direct that any reasonable time spent in evaluating the new material that is now emerging will be paid for by Ofsted.

MR WARD: My Lord, we do not resist that for a moment.

MR JUSTICE FOSKETT: No. That is a proper course to take.

MR WARD: But whether the costs should be assessed on indemnity basis, we suggest that your Lordship should reflect on that at the end of the process when the costs order is made, when the full facts are known about what has happened and why.

MR JUSTICE FOSKETT: In terms of their attendance today, I can make up my mind. They should have their costs on the indemnity basis today. I can see no answer to that.

MR WARD: My Lord, I do not oppose that.

MR JUSTICE FOSKETT: No. The rest of it will come out in the wash in due course. So when somebody prepares some kind of an order reflecting what I have decided today, please incorporate the fact that I shall consider that aspect in due course when all issues of costs have to be resolved.

The question is what should happen after you have complied with all that. We are talking about another fourteen days before that process is complete.

MR WARD: Which takes us to roughly 25 November.

MR JUSTICE FOSKETT: What day of the week is that? That is a Wednesday. We will say by 5pm on the Wednesday. It is easier than just saying "fourteen days". So you complete the task of examining whether you have complied with your obligation of candour by then and the statements evidencing that are to be served by then. How long do you want after that, Mr Maurici, to look at them? I do not suppose really, do you?

MR MAURICI: We do not. 25 November gives us fourteen days from today when we get the documentation.

MR JUSTICE FOSKETT: Yes.

MR MAURICI: My Lord, I was going to suggest, if your Lordship would direct that we have fourteen days?

MR JUSTICE FOSKETT: Yes.

MR MAURICI: If we feel we need more, then we can apply in writing to you for an extension. But I hope that will not be necessary.

MR JUSTICE FOSKETT: No.

MR MAURICI: So fourteen days from 25 November.

MR JUSTICE FOSKETT: Yes.

MR MAURICI: And then, my Lord, we need to build in obviously a reply from the other parties. I suggest that there should also be a final right of reply from the claimant.

MR JUSTICE FOSKETT: Yes, to anything that comes from any of the other parties.

MR MAURICI: Yes.

MR JUSTICE FOSKETT: What shall we say? Another seven days after you put in your initial response for any other parties to put in their response --

MR MAURICI: Yes.

MR JUSTICE FOSKETT: -- and then give you another seven days after that?

MR MAURICI: Yes.

MR JUSTICE FOSKETT: That is going to take us up somewhere into December, is it not?

MR MAURICI: It is. Up to Christmas.

MR JUSTICE FOSKETT: Yes. It is all very unsatisfactory, but there we are. I do not think there is any other way around it.

MR MAURICI: My Lord, there is not. We make the point in the letter that it is obviously of huge concern to us because of the effect of the petitions on our client, but there is nothing that can be done.

MR JUSTICE FOSKETT: No. The bottom line is that this case must be dealt with on the basis of all the material that ought properly to be before me. As I said before, it is not fair on anyone, and it is not fair on me either.

One hopes that once this process has been exhausted there will not be a need for any further oral hearing. If any party feels that that will be necessary once this process has run its course, then they will have to tell me and I shall make a decision about that. Of course, it may be that I shall want to raise some matters arising out of all this. I simply do not know. You know where I am going at the end of this week. I am going north and probably not returning from the north until the middle of February. That does not mean to say in a case of this nature it would not be possible to find some time somewhere to deal with it, but obviously logistically it is not that easy. That is not held in terrorem. If people feel they need an oral hearing, I will find time to do it. But maybe it will not be necessary.

MR MAURICI: My Lord, I hope it will not be necessary. The only circumstances in which it might be is if we feel that there are other documents that have not been disclosed that we want. I hope that is not going to be the case.

MR JUSTICE FOSKETT: No. Again, that can all be raised in written form initially and a great deal of that can be dealt with in that way.

MR MAURICI: My Lord, can I suggest that Mr Ward produce the draft order for today given that it mainly affects --

MR JUSTICE FOSKETT: You are going to have to pick up pretty well everything today, Mr Ward, so yes.

MR WARD: I recognise that, my Lord. I am happy to do that.

MR JUSTICE FOSKETT: If you could draft something, please, relatively quickly --

MR WARD: Yes.

MR JUSTICE FOSKETT: -- and let me have it perhaps during tomorrow, if everybody has agreed to it --

MR WARD: I will circulate it between counsel first.

MR JUSTICE FOSKETT: Thank you very much.

MR WARD: Could I just mention one further point, my Lord?

MR JUSTICE FOSKETT: Yes, of course.

MR WARD: It is in our letter, but just for the record, on the first page of the letter we drew attention to the question of possible redactions for the purpose of the court file.

MR JUSTICE FOSKETT: Yes.

MR WARD: I am not asking for a specific order, but just to make clear that what we propose to do, subject to your Lordship, is serve a redacted set to protect the names of individual children.

MR JUSTICE FOSKETT: Oh, certainly, yes.

MR WARD: Just for the benefit of potential access to the court file in due course.

MR JUSTICE FOSKETT: Yes. I cannot imagine that there is any objection to that. Yes, that is fine. All right. Is there anything else that I need to deal with? No? Right. Thank you for your attendance. I shall await developments.

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