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
		5 November 2010

MR JUSTICE CRANSTON:

Introduction

1. This is an application for interim relief and a protective costs order in relation to claims arising out of tendering exercises conducted by the defendant, the Legal Services Commission. These tendering exercises relate to the award of the contracts to provide publicly funded legal services. They relate to contracts for public law work and mental law work in high-security hospitals. The injunction sought would permit the defendant to continue the process of verifying successful bids and hear appeals but prevent the issue of a new contract or "new matter starts" essentially until the outcome of judicial review proceedings. The claimant also seeks an order in relation to Regulation 47 A-H of the Public Contracts Regulations 2006, 2006 SI No 5.

Background

2. Those who currently provide publicly funded legal services for public law and mental health matters do so under the Unified Contract (Civil) issued by the Legal Services Commission. That contract was originally due to expire on 14 October 2010 although on 13 September the defendant extended its terms by a month to 14 November 2010.
3. Over the last two years the defendant has entered into a process which led to the tendering exercises described. One aspect is in relation to new matter starts. This represents the authority firms have to provide advice to a client in return for a fee. Members must open new matter starts in return. Each contract provides a number of new matter starts. Those successful in their bids as a result of the tendering exercise would be awarded a number of new matter starts. The outcome of the tendering exercise process was announced in the middle of this year. Those successful in respect of tendering for public law work were informed on 25 August; those in respect of mental health work in high-security prisons on 17 August; those in relation to the mental health work generally, two days later.
4. After the announcement of the results of the tendering exercise, Bindmans, the instructing solicitors in this action, appealed to the defendant under the appeal processes provided. Its appeal was followed by the appeal of other firms. Between 20 and 24 September the defendant rejected these appeals.
5. Meanwhile the Law Society had instituted an action against the defendant in relation to the family law contracts. Judgment was given on 30 September in Law Society of England and Wales v Legal Services Commission [2010] EWHC 2550 Admin On the same day the Legal Services Commission issued a press release in which it said that it was considering the position in the light of the success of the Law Society in that litigation. A fortnight later it announced that it had decided that it would commence the contracts on 15 November, but in relation to family law contracts the date would be extended until 15 December. On 20 October letters before claim in relation to both the public law and the mental health high security work were issued. The claim forms were lodged on 28 October.
6. Although the litigation was begun by Public Interest Lawyers, at a directions hearing on Wednesday I ordered that the firm RMNJ solicitors be joined. It undertakes mental health work. It seemed appropriate that it should be party to the litigation given that Public Interest Lawyers do not undertake any work in relation to mental health matters. On Wednesday, I also ordered that DH Law LLP be granted leave to intervene in relation to mental health generic tender challenges. That is a small and relatively new firm, and was represented in these proceedings by their principal, Miss Davies.
7. Statements in support of the action had been authored by solicitors representing a number of firms, notably Bhatt Murphy and Pierce Glyn. There is also a letter from another firm, Steel & Shamash, who explained that it would have given financial backing to the litigation but because of its financial position was not able to do so. There is as well a supporting statement from Bindmans, the instructing solicitors in this action.

Interim relief

8. The claimant seeks an order by interim relief which would prevent the defendant from entering into contracts with successful tenderers in the public law and high security mental health work. The result of granting an interim injunction would be that successful tenderers would not have the authority to open cases and be paid for giving advice because, in as much as they do not have an existing contract, they would not have the necessary contract with the defendant.
9. The submissions on behalf of the claimant needed to address, first of all, the defendant's assertion that it had no power unilaterally to extend the existing Unified Contract, for the period between interim relief being granted and the hearing albeit that it had done so on several occasions already. In advancing those submissions, Mr Nicholls to my mind passed over too readily some basic principles of privity of contract and waiver of contractual rights. Whatever the true position about the defendant's power to extend the existing contracts, I have assumed for the purposes of this application that that is possible.
10. The test for interim relief is the well established American Cyanamid decision, modified in this area however by importance of public interest considerations (see R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 Admin). One public interest in this context is the public interest in allowing public authorities to implement the law. Another is the public interest being advanced by claimants, access to justice.
11. American Cyanamid involves two issues. First, is there a serious issue to be tried? Secondly, does the balance of convenience favour the grant or refusal of injunctive relief? Mr Nicholls, on behalf of the defendant, made submissions in relation to the first issue. His contention was that there could not be said to be a serious issue to be tried given, inter alia, that any final relief would not mirror the interim relief being sought. To my mind there is no need for me to address the first issue because I have firmly concluded that the balance of convenience is against the issue of the interim injunction.
12. Let me turn to balance of convenience. I should say at the outset that in my view the Public Contracts Regulations 2006, as amended, do not have an impact on the way the balance of convenience issue is to be approached. The amendments to those Regulations in 2009 implement European Union Directive 2007/66/EC which sought to introduce a more effective review process between the decision to award a contract and the consummation of the contract in question. There was argument before me about where the burden lay as a result of the Regulations in terms of determining the balance of convenience but, whatever the correct position in relation to that matter, I take the view that the balance of convenience is so firmly against the issue of an interim injunction that there is no need for me to proffer any final conclusions about that matter.
13. On behalf of the claimant, Mr Bowen submitted that the balance of convenience was firmly in favour of the grant of interim relief. He contended that were I to refuse relief, but subsequently the claimant were to win, the consequences would be far more disruptive than were I to grant relief and the claimant were to win or lose. He made the obvious point that the defendant would, without an injunction, enter into contracts with the result, as he submitted, that many existing suppliers would no longer be operating since their contracts would have come to an end. It would be, in his submission, very disruptive for the court then to grant relief restoring the previous position and requiring the defendant to carry out the tendering exercise again. Those firms whose contracts had already ended might have been forced to close or to lay off staff. They might not be able to participate in any second round of tendering. The alternative would be that the court hearing the matter would grant no final relief despite the claimant's success and so the whole exercise would have been academic.
14. Mr Bowen identified the prejudice to clients if interim relief were to be refused and ultimately the claimant were to win. He took me to a statement from Margaret Houdmont at MH legal who has an existing contract in relation to high security mental health work. One of its lawyers - Pam White - has established an especially close relationship with her clients in that she is able to communicate with persons who are deaf and suffering from mental health problems. Those patients wre particularly vulnerable. For the existing contracts not to be continued for the time being would be especially threatening for them and in particular to their ability to have a solicitor of their own choice.
15. Mr Bowen submitted that if interim relief were to be granted then there would be relatively little prejudice to the defendant and to the successful tenderers either way. The matter would be heard by the end of term. If the claim succeeded it would be relatively straightforward for the defendant to extend the existing contracts pending a new tendering exercise. That was the position in relation to the family law judicial review.
16. Mr Bowen submitted that if I granted an injunction and the claimants lost then no great prejudice would be suffered. The defendant could commence issuing the new contracts immediately. The only persons who would be adversely affected would be the new entrants who would have been awarded contracts on 15 November. But were there no new mental health high security contract holders since all of the successful contractors would necessarily have been existing providers. That was because of the nature of the pre-requisites to bid for that type of contract. Albeit that there would be new public law contract holders, none had come forward for this hearing and there was no evidence before me as to the damage they might suffer by not being able to begin with their contracts. In any event, submitted Mr Bowen, such firms would not be greatly affected since many firms would already be able to bring public law cases under different categories of contract, for example, housing law or immigration law or under the "tolerance" system.
17. In my view the serious consequences were I to grant injunctive relief and the claimant were to lose are such that the balance of convenience is firmly in favour of refusing relief. In particular, law firms which have been awarded contracts and are making arrangements such as taking on premises and hiring staff would suffer loss. I was especially impressed by the evidence from DH Law LLP. That, as I described earlier, is a small firm, a new entrant, undertaking general mental health work. Albeit that that firm does not fall within the two categories of public law and mental health high security with which I am concerned, it seems to me that its situation is illustrative of the type of problems which can arise were new entrants awarded contracts not be able to begin with those contracts in the coming weeks. There is a statement from a member of that firm, Ms Arora. It is a small firm and, as with many firms, has cash-flow problems. It has a business plan but it is not able to implement it fully because of the uncertainty about the contracts. Its bank manager is not prepared at the present to assist until it has a confirmed contract with the defendant.
18. Moreover, there is some evidence in relation to the new contracts in the public law area. The figures provided by the defendant to the court indicate that there are a number of new suppliers in a number of areas. For example, in London the number of suppliers awarded a new contract is sixty-two, compared with the number of twenty-two suppliers under the current arrangements. Some areas, such as Brighton, have new suppliers whereas they had no suppliers at all under the existing arrangements. Those figures underline, to my mind, the ramifications for successful firms in the tendering process who do not have contracts under the existing arrangements, of not being able to begin work in the coming weeks.
19. There are consequences if I refuse relief to the claimant and it wins. To my mind, they are not insignificant but they are not of determining weight in the balance. The claimant, Public Interest Lawyers, has been awarded a contract in public law. It, of course, is disappointed that while it bid for one hundred and twenty new matter starts it was awarded only twenty-five. RMNJ is even more disappointed because it bid for two hundred new matter starts and was awarded only thirty. But if interim relief is refused Public Interest Lawyers will be able to carry out work and be paid for it. The twenty-five new matter starts which it has been awarded will certainly be sufficient to cover the period until the hearing of the substantive matter. That applies as well in relation to RMNJ. As I identified earlier, both law firms will be entitled to complete existing work for existing clients under their current contracts.
20. Mr Bowen made submissions about the serious consequences of refusing interim relief because of the final relief, if the claimant is successful, which would be granted. But it seems to me that it is impossible at this stage to speculate as to the nature of any final relief which would follow from the claimant's success. I am also mindful that the court can be innovative by way of the declaration made, in tailoring the type of remedy which the defendant might be ordered to provide as a result of the claimant's success.

Protective Costs Order

21. I turn to the protective costs order. The principles are well known, as set out in the leading decision in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. There, the Court of Appeal enunciated the key principles:

"74 We would therefore restate the governing principles in these terms:

1 A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

i) The issues raised are of general public importance;

ii) The public interest requires that those issues should be resolved;

iii) The applicant has no private interest in the outcome of the case;

iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;

v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

2 If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

3 It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."

22. Following that decision, the suggestion in Goodson v HM Coroner for Bedfordshire [2005] EWCA Civ 1172 was that the second requirement, as to having no private interest, was expressed in unqualified terms. Subsequently, however, the Court of Appeal indicated in Morgan v Hinton Organics that having a private interest does not preclude the making of a protective costs order. Its presence, depending on the circumstances, may weigh heavily in the balance.
23. As far as the application of these principles to the circumstances of this case is concerned, Mr Nicholls for the defendant made certain submissions about the issues not raising matters of general public importance. He drew a contrast with the Law Society v Legal Services Commission litigation, where those on both sides of the contract tendering process, in other words both new entrants and existing firms, intervened or supported the Law Society in its action. The Law Society itself, as the body representing solicitors, was a litigant. None of that, he submitted, was present here. The reality was that these were disappointed bidders who were seeking to advance their own cause.
24. In my view the work undertaken by each of the firms I have mentioned, in providing access to justice, is of obvious public importance interest. There is also a public interest in resolving the issue. Their case-load is a regular feature of the work of this court. New firms may provide equivalent or possibly even better service in time but there is no doubting that the public interest is advanced by the work each of these firms do in their daily practice. In my view public interest is clearly demonstrated, especially when coupled with ensuring that the public tendering process, involving the allocation of large sums of public money, is carried out in a legally correct way.
25. I turn to the third principle, private interest. That is the most troubling aspect of the claimant's application. There is no doubt that both Public Interset Lawyers and RMNJ solicitors have a strong interest in the outcome of this case. In his second statement Mr Shiner, for the Public Interest Lawyers, identifies a benefit of some £44,000 over a three-year period as a result of the award of a contract as bid for. The equivalent figure for RMNJ is £135,000. There is no doubt that that represents a private interest. The supporting lawyers who have provided witness statements also have a financial interest in the outcome of the litigation. Mr Nicholls submitted that that was a fatal flaw in the award of a protective costs order. Moreover, he contended, that there was a lack of information about the financial situation of both law firms. On the other side of coin, the defendant was facing numerous calls on its resources and for money to be diverted into litigation about this matter would detract from the extent to which it could provide publicly funded legal assistance.
26. In my view, however, the private interest which the claimants obviously have is not such as to determine this application for a protective costs order. As I have explained, the firms supporting the litigation, and the two firms themselves, are prominent players in advancing public interest matters. I regard the first claimant, in particular, as a surrogate for others who seek to advance the public interest through public law actions. That being the case, it seems to me that it devalues the work that these firms undertake to describe their action in this case as primarily commercial. It seems to me that private interest is not a major factor in the balance in this case. In particular I draw on the part of the judgment by Lord Hope in In re appeals by Governing Body of JFS [2009] UKSC 1, [2009] 1 WLR 2353, paragraph 25, where, in a different context, his Lordship said that the system of public funding would be gravely disadvantaged if the pool of reputable solicitors willing to undertake this type of work was to be adversely affected.
27. There is the issue of the claimant's financial resources and alternative means of funding this litigation. At present the proposal before me is that the Law Society['s] indemnity towards costs, in the event that the claim fails, but limited to £40,000, would be supplemented by £10,000 from Public Interest Lawyers and by some £20,000 from other supporting firms. It seems to me however, that to be fair and just for this application to be granted a greater contribution is required which I will shortly discuss with counsel. I accept what Mr Shiner says about this action being abandoned if there is no protective costs order.
28. The upshot is that in my view there should be a protective costs order in this case to ensure that the lawfulness of the defendant's actions is properly tested.
29. (To counsel) I think we need a greater contribution.
30. MR BOWEN: Can I take instructions? (Pause) The figure that we had in mind had been £75,000. My Lord has totted it up and so far £70,000 is insufficient. We can certainly go to £75,000 but without anymore instructions and any more pledges I certainly cannot, with any confidence, say that we can get any more. I imagine we have to ask the question first. Did my Lord have a figure in mind?
31. MR JUSTICE CRANSTON: In Compton, where I did the main hearing, I think that that was £100,000 or am I wrong? No. I am completely wrong about that. That is not the case. Shall we hear from Mr Nicholls about this?
32. MR NICHOLLS: We would be satisfied with a figure of £100,000. There would then be an issue of, as it were, the reciprocal limit on the claimant.
33. MR JUSTICE CRANSTON: What do you say about that?
34. MR NICHOLLS: In principle it should be reasonable costs of the case of, say, junior counsel and solicitors fees. I will come back to that in a moment. In this case I have a concern there are two counsel rather than one. The hourly rate we are told being charged by Bindmans is £375. I would invite you to impose a rather lower cap on that. Those instructing me are charged out at £196 an hour. There is also in the background an issue of a success fee but I have no idea what that success fee is. There is an indication in, I think, the Bug Life case that the defendant ought to know what the success fee is because that is part of the reasonable cap. Speaking for myself, I would suggest there should be solitary junior counsel, solicitors capped at £196.
35. MR JUSTICE CRANSTON: An hour, £196.
36. MR NICHOLLS: Ideally I would like to stop there and not have a success fee.
37. MR JUSTICE CRANSTON: The £196 you got from your - - - - -
38. MR NICHOLLS: That is the rate that my instructing solicitors charge to the LSC. Bindmans are, according to Mr Shiner, charging £375 an hour. We say that a lower rate, equivalent to rate on our side, is appropriate.
39. MR JUSTICE CRANSTON: Give me the amounts.
40. MR NICHOLLS: £196 for solicitors, solitary junior counsel. My preference would be to stop there. I do not know what it is that is in the claimant's mind in relation to a success fee.
41. MR JUSTICE CRANSTON: You would want to cap that?
42. MR NICHOLLS: Yes. May I, for completeness, make it clear that I think it is implicit in your Lordship's judgment that I can have my order under 57 (h).
43. MR JUSTICE CRANSTON: Yes.
44. MR BOWEN: On the reciprocal cap, the question of whether there should necessarily be a reciprocal cap was considered by the Court of Appeal in Garner. What it said was that there may need to be a reciprocal cap but it should not be in the same amount.
45. MR JUSTICE CRANSTON: It does not have to be a mirror - - - - -
46. MR BOWEN: Paragraph 56:

"I would not for a moment suggest that the limits ..... of each party must necessarily be the same. The limits should properly reflect the disparity of resources but it does seem to me that the offering of £35,000 suggests that the respondent's liability ..... on success is fair and proportionate."

I think that was in the context of a much lower cap.

47. MR JUSTICE CRANSTON: What is his Lordship saying in terms of money?
48. MR BOWEN: In that case I think the cost limit was £5,500 on a PCO with a reciprocal cap of £35,000, so it was in proportion seven-to-one. If you apply the same it is very unlikely there would be any cap if you were to take seven times whatever, even £75,000. What we would be prepared to say is that first, in terms of counsel's rates, we have already suggested the wording that those rates be moderate.
49. MR JUSTICE CRANSTON: I think in one case - I cannot remember which one - I said you should reflect the rates of the government lawyers.
50. MR BOWEN: This much I understand. I stand to be corrected if I am wrong about this but in the other challenge, family law challenge, when the Legal Services Commission was represented by three barristers, they were being paid at a commercial rate. They were not being paid at the rate of Treasury counsel, for example. So, if there is to be a reciprocal rate of counsel's fees, then if it is a commercial rate on their side then it should be a commercial rate on our side. I would be happy to have that issue clarified by my learned friend.
51. MR NICHOLLS: As a commercial rate, I agree, but there were no PCOs in that case.
52. MR JUSTICE CRANSTON: What are you saying? What is your submission on that?
53. MR NICHOLLS: I was just responding to my friend's question.
54. MR JUSTICE CRANSTON: I think he was actually asking about whether you were being paid commercial rates.
55. MR NICHOLLS: He was asking whether we were paid commercial rates in the family law challenge to which the answer is yes, we were.
56. MR BOWEN: We would probably be happy to settle for the same rates as are paid to the - - - - -
57. MR JUSTICE CRANSTON: Commercial rates?
58. MR BOWEN: If they are commercial. If they choose to be at a different rate then - - - - -
59. MR JUSTICE CRANSTON: I agree.
60. MR BOWEN: - - - - - we would be prepared to reflect that.
61. MR JUSTICE CRANSTON: I think the rates have to be mirror rates.
62. MR BOWEN: Be the same.
63. MR JUSTICE CRANSTON: Yes.
64. MR BOWEN: For solicitors I understand it is a different scenario. Of course solicitors have businesses to run as well out of their fees whereas the LSC have in-house solicitors. They are not instructing private solicitors. I am not quite sure how they calculate their hourly rates in any event.
65. MR JUSTICE CRANSTON: What are the rates?
66. MR BOWEN: We are all working on a CFA. Generally speaking, there should be no issue with a success fee in circumstances such as this. We are prepared to do one of two things - either in the case of those instructing me - either to be paid at the rate that they have asked for which is £375 an hour but with no success fee or to have a lower rate but with the success fee they would otherwise expect to recover which, in a case such as this, would be one-hundred per cent if it came to trial and we won at trial. It is really again a matter for negotiation under my Lord's auspices.
67. MR JUSTICE CRANSTON: Any thoughts on that?
68. MR NICHOLLS: I am certainly strongly opposed to any suggestion of a one-hundred per cent success fee. My friend has not yet dealt with the question of whether he needs two barristers on his side or dealt with the question of their rates. I think I would probably need to take some specific instructions in relation to figures from those sitting behind me which I have not been able to do yet.
69. MR BOWEN: I am happy to deal with the question of two barristers.
70. MR JUSTICE CRANSTON: I can see you need two barristers. I think £375 per hour, no success fee.
71. MR BOWEN: £375, no success fee. We have not agreed counsel's fees at the moment. We have said that they will be the same.
72. MR JUSTICE CRANSTON: They will be exactly the same.
73. MR BOWEN: They will be exactly the same.
74. MR NICHOLLS: My instructions are to agree £375 per hour for solicitors with no success fee. And I assume it follows no success fee on counsel's fee as well. Is that right?
75. MR BOWEN: I suppose that depends on whether you are going to be working at Treasury rates or not.
76. MR NICHOLLS: I am not, no.
77. MR BOWEN: In that case we will be content with that. I think my Lord has indicated that you consider this is a case that requires two counsel. I anticipate that Mr Nicholls will be back in harness with Mr Lewis or somebody of similar stature. We are in a position where we have not yet identified anybody who may - - it may be that they will be coming in over me. We will not be having three barristers. If that happens Mr Chataway will fall on his sword. For the purposes of the order the only thing we have not nailed yet is the question of what the cap should be.
78. MR JUSTICE CRANSTON: The amount.
79. MR BOWEN: I am looking at the situation where we have, in effect, a one-to-seven ratio in Garner. I would submit that the figure of £75,000 is an adequate one when you look at it in the scheme of other cases. In Garner it was £5,000. We have not any guarantee that any of those firms which have offered to give money, whether there are any more which would be prepared to do so. With greatest respect to my friends and their teams, £75,000, it should not be an awful lot more than that anyway. I would submit that it should be there or thereabouts, £5,000 either way perhaps, but £100,000 would be disproportionate.
80. MR JUSTICE CRANSTON: Sorry for you.
81. MR BOWEN: For us?
82. MR JUSTICE CRANSTON: Yes.
83. MR BOWEN: Yes.
84. MR JUSTICE CRANSTON: It just seems to me that Mr Shiner has come up with £10,000. His is a smaller firm than some of the other firms. My question is why can other firms not match that.
85. MR BOWEN: I am in a difficult position here. If you are minded to flush out some more supporters that may happen.
86. MR JUSTICE CRANSTON: You have at least four additional supporters, have you not? Is that right?
87. MR BOWEN: We have four: Bhatt Murphy, MH Legal, Duncan Lewis and Pierce Glyn who have all pledged £5,000. Campbell Taylor has pledged £500. RMNJ has pledged £5,000.
88. MR JUSTICE CRANSTON: I am thinking aloud. It seems to me that they should be able to match Phil Shiner. That is how I get up to £100,000.
89. MR BOWEN: May I take instructions?
90. MR JUSTICE CRANSTON: Do you want time to think about it?
91. MR BOWEN: I do not think that thinking about it is going to resolve the dilemma that my solicitor and I face which is that we do not have instructions to offer anything more. All we can do is offer what we have offered. If you consider it insufficient all I can do is seek to persuade you that it is a reasonably proportionate amount given that these firms are publicly funded firms for whom £5,000 is a considerable amount of money.
92. MR JUSTICE CRANSTON: I do not deny that. We have the example of Mr Shiner.
93. MR BOWEN: Mr Shiner - I am sure you have come across him - is a particularly unique individual. I would submit that really the difference between £80,000 and £100,000 is not going to make such a huge difference to the defendant as it is likely to make to us in the event that it is called upon. I cannot really make any more submissions than that.
94. MR NICHOLLS: My submission is that £100,000 is the appropriate figure, having regard to the fact that it is tax payers' money. May I suggest this that the firms which have an interest in this case go away and think about it in the light of your judgment and the indications you have given? For reasons that you have explained you do not regard their private interest as precluding a PCO but, in my submission, it is relevant to the level at which they have assessed. I would invite you to stick at £100,000, and it is a matter for those behind the claims to think amongst themselves about what they are going to do.
95. MR BOWEN: I am looking at other cases. For example, in the CND case there was a costs cap of £25,000.
96. MR JUSTICE CRANSTON: I think - for the reasons Mr Nicholls has just given which I tried to articulate earlier - £100,000.
97. MR BOWEN: Very well, we will reflect on that.
98. MR JUSTICE CRANSTON: Is there anything more?
99. MR BOWEN: We did draw up the beginnings of an order. I can change that so far as the PCO and the interim order will be lost. We need to look at the timetable and in particular when it is going to be heard.
100. MR JUSTICE CRANSTON: The listing officer has indicated it will be by the end of term. I shall put that as part of the order.
101. MR BOWEN: Would it be possible for us to have it ordered in on a particular date.
102. MR JUSTICE CRANSTON: You had 29 November.
103. MR NICHOLLS: I cannot do that.
104. MR JUSTICE CRANSTON: I think you will just have to discuss this with the listing officer. I will order that it be heard before the end of term.
105. MR BOWEN: Can you order - I am sorry to make a special pleading - before 10 December because I know that I cannot do the week after that; for a two-day hearing before the 9th.
106. MR JUSTICE CRANSTON: You need two days, do you?
107. MR NICHOLLS: I think two days is a safer estimate. It would be a squeeze in a day.
108. MR JUSTICE CRANSTON: It makes it much more difficult. What about a day-and-a-half?
109. MR BOWEN: If we are told to do it in a day-and-a-half we will do it in a day-and-a-half.
110. MR JUSTICE CRANSTON: Your chances are better.
111. MR NICHOLLS: Would you say costs of today reserved?
112. MR JUSTICE CRANSTON: Yes. Miss Davies, I have not asked you about anything. Is there anything you want to say?
113. THE INTERVENOR: There is nothing more for me to add at this stage.
114. MR JUSTICE CRANSTON: Can you draw up the order the two of you? Can you do it almost straightaway?
115. MR BOWEN: I can draw it up now and I will go to a place where my computer works and e.mail it to the associate.