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
		15 June 2012

1. MR JUSTICE OUSELEY: Mr Milne, the interested party, is a former fireman who retired before August 2006. He was a member of what is now known as the Firefighters' Pension Scheme. This scheme is provided for in the Firemen's Pension Scheme Order 1992 SI 129 made under the Fire Services Act 1947. Rule B7(3) in schedule 2 is the general commutation provision enabling pensioners to take a lump sum on retirement, which is the actuarial equivalent of the portion of the pension commuted "calculated from tables prepared by the Government Actuary". Mr Milne, with other firefighters, complained to the Pensions Ombudsman that the Government Actuary's Department, GAD, had been guilty of maladministration because it had not updated the actuarial tables between June 1998 and August 2006. They alleged that updated tables would have led to a greater lump sum.
2. The Pensions Ombudsman has jurisdiction to investigate and determine complaints under section 146(4) of the Pension Schemes Act 1993 and the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996 SI 2475. That jurisdiction applies in respect of the acts or omissions of a person responsible for the management of the scheme, which, by subsection (3), is confined to the trustees or managers and the employer. It is the regulations which enable a complaint to be made against a person "concerned with the ... administration of the scheme", "an administrator" in that specific sense.
3. The Pensions Ombudsman has not yet considered the substance of the complaints but has rejected a preliminary point raised by GAD to the effect that he had no jurisdiction to consider the complaints. GAD contended that it was not "an administrator" within the 1996 Regulations. It was agreed that, if it were such a person, jurisdiction would exist for the Pensions Ombudsman to consider complaints about maladministration before 6 April 2005, but not if GAD were not an administrator. The Pensions Ombudsman concluded that GAD was indeed an administrator within the 1996 Regulations. It is that decision which GAD challenges in these proceedings. The statutory provisions for appeals against decisions of the Pensions Ombudsman do not apply to that decision and so judicial review is the appropriate remedy.
4. The GAD performs the duties of the Government Actuary. It regards itself as an independent actuarial consultancy working within government and as a pension consultancy specialising in giving advice to public bodies in the UK. Mr Chamberlain, for GAD, described it as "an independent provider of expert judgment based on statistical data", at least so far as was material to this case.
5. The Department for Communities and Local Government, which has responsibility for the fire services, and GAD had operated on the assumption that responsibility for commissioning reviews of actuarial tables for the Firefighter's Pension Scheme lay with the Department for Communities and Local Government. But, on 17 March 2009, Cox J in Police Federation of England and Wales v Secretary of State for the Home Department and GAD [2009] EWHC 488 (Admin) held that that was a significant error of understanding. Both sides agree that that decision is applicable to the Firefighters' Pension Scheme.

The statutory provisions

6. Rule B7 in schedule 2 of the Firefighters' Pension Scheme Order, which contains the scheme, permits the commutation of part of the periodical payment of ordinary, short service, ill-health or deferred pensions. Rule B7(3) reads:

"The lump sum is the actuarial equivalent of the commuted portion at the date of retirement calculated from tables prepared by the Government Actuary."

7. Mr Chamberlain contrasted this with rule B7(9), which leaves the calculation of the lump sum and the reduction of periodical payments to the fire authority using the tables provided by GAD.
8. Mr Boonin provided a witness statement on behalf of GAD. This showed many instances in the Firefighters' Pension Scheme where calculations are to be done from tables prepared by the Government Actuary and a few where the Government Actuary provides, for a fee, calculations at the request of the scheme administrators or offers specific advice. As Mr Boonin said:

"The majority of GAD's duties under the FPS consist of preparing, and revising from time to time, tables that the scheme administrators can use to calculate various actuarial values."

9. Rule B7 is an instance of such a duty. The tables provided by GAD would be used by the scheme administrators with some frequency. Mr Boonin expresses the effect of rule B7 as imposing a duty to prepare and revise the tables from time to time, but it is also accepted by GAD that that includes a duty to consider whether the tables need revising. This is the result of the decision in the Police Federation case.
10. Although that case was concerned with the lawfulness of a delay by the Home Office in introducing revised tables for the Police Pension Fund, crucial to the decision was the nature of the duty on GAD in rule B7(7) of the Police Pensions Regulations 1987, which are in materially the same terms as rule B7 of the FPS scheme. Cox J held in paragraphs 105 to 106:

"105. Whilst it is correct that there is an express obligation only on police authorities to use the tables prepared in calculating the lump sum, the Regulation clearly contemplates that there is a duty to prepare tables, to enable that lump sum to be calculated correctly and paid. Since the actuarial equivalent is liable to change over time, a judgment must be exercised periodically as to whether to revise the existing tables, to ensure that the tables to be used in calculating actuarial equivalence do in fact enable equivalence to be achieved in respect of any surrendered portion. That judgment calls for an entirely actuarial expertise and is to be exercised only by the Government Actuary. There is therefore an implied obligation upon the Government Actuary to prepare tables and, if necessary, to review and revise them, because they are needed to enable the police authorities to comply with their express obligation to use them, i.e. to make the provision work (see Padfield v Ministry of Agriculture Fisheries and Food [1968] AC 997.)

106. There is therefore an implied obligation upon the Government Actuary to identify those factors which will, in his/her judgment, give the actuarial equivalent for each officer who elects to commute and serves the notice. As the evidence shows, it is the changes in actuarial conditions (mortality assumptions and discount rates) which may lead the Government Actuary to review and revise the tables from time to time, in order to comply with this implied obligation. Whilst it is correct that Parliament has not specified the time which is to elapse between reviews, such express provision is in my view unnecessary. The express requirement in B7(7) that the tables must be such as enable a police authority to calculate a lump sum which is the actuarial equivalent of the surrendered portion is sufficient to enable the Government Actuary to determine whether, at any given time, changes are required to existing tables to enable police authorities to fulfil that obligation."

11. Over time, the Home Office and GAD had come to misunderstand their roles in relation to the police pension, as it appears the DCLG and GAD did in relation to the FPS until 17 March 2009, the date of judgment. There is no issue with the effect of that judgment in relation to the nature of the duty in rule B7(3) of the FPS.
12. The Pensions Ombudsman's powers are contained in section 146 of the Pension Schemes Act 1993. Section 146(1)(a) permits him to investigate and determine complaints of maladministration "in connection with any act or omission of a person responsible for the management of the scheme...". But by section 146(3), the persons responsible for the management of an occupational pension scheme, so far as material, are limited to trustees, managers and the employer. Section 146(4), however, provides:

"(4) Regulations may provide that, subject to any prescribed modifications or exceptions, this Part shall apply in the case of an occupational or personal pension scheme in relation to any prescribed person or body of persons where the person or body—

(a) is not a trustee or manager or employer, but

(b) is concerned with the financing or administration of, or the provision of benefits under, the scheme

as if for the purposes of this Part he were a person responsible for the management of the scheme."

13. I note at this stage for ease of reference the amendment made with effect from 6 April 2005 by the addition of section 146(4A):

"(4A) For the purposes of subsection (4) a person or body of persons is concerned with the administration of an occupational or personal pension scheme where the person or body is responsible for carrying out an act of administration concerned with the scheme."

14. It is the effect of that new subsection which caused GAD to accept before the Pensions Ombudsman that he had jurisdiction in respect of complaints of maladministration made against it after 6 April 2005, because it accepted that what it was doing in respect of the provision of tables made it a body "concerned with the administration of an occupational pension scheme" because it was "responsible for carrying out an act of administration concerned with the scheme".
15. The regulations made under section 146(4) are the Pensions and Occupational Pensions Schemes (Pensions Ombudsman) Regulations 1996 SI 2475. By regulation 4(2), the Pensions Ombudsman is given power to investigate and determine complaints of maladministration in connection with the acts or omissions of an administrator. Regulation 12 defines "administrator" in relation to occupational pension schemes as:

"...any person concerned with the administration of the scheme, other than a person responsible for the management of the scheme (as defined in section 146(3) of the 1993 Act for the purposes of Part X of that Act)."

It is trustees, managers and the employer who are defined as the persons responsible.

16. It is noteworthy that the regulations do not exploit to the full the powers given by section 146(4) since they do not cover those in section 146(4)(b) who are concerned with the financing of a scheme or the provision of benefits under the scheme. The regulations cover only those who are concerned with the administration of the scheme.
17. The meaning of the phrase "concerned with the administration of a scheme" has been considered in a number of cases. In Ewing v the Trustees of the Stockham Valve Limited Staff Retirement Benefit Scheme [2000] OPLR 257, the Northern Ireland Court of Appeal considered the position of solicitors as administrators within the equivalent to the FPS statutory scheme. Lord Carswell CJ said:

"The work done by a solicitor may vary considerably from case to case. He may be engaged to perform tasks which are connected with the running of the affairs of his principal. It is, as counsel rightly submitted, a matter of fact and degree, depending on the terms of the solicitor's retainer. Where he is simply instructed to write a letter of claim to a debtor he is acting as the agent of the principal in carrying out his instructions. We do not consider that it can be said that in these circumstances he is concerned with the administration of the affairs of the principal. Arthur Cox were in that position. They were merely instructed to seek recovery of certain sums of money from the respondent, and wrote a letter of claim accordingly. In our view this cannot be said to have been 'concerned with the administration of the scheme', and the Ombudsman was in error in so holding."

This could not be said to be concerned with the administration of the scheme.

18. In R (Britannic Asset Management Ltd) v Pensions Ombudsman [2002] EWHC 441 (Admin), Lightman J had to consider whether BAML was concerned with the administration of a scheme because on the instruction of trustees it acted, as it was obliged to, by disposing of investments. In paragraph 20, Lightman J explained how the question of whether someone was concerned with the administration of the scheme should be resolved. He said:

"This is a question which focuses on the role of the Claimants in complying with the instructions and what and whose affairs the Claimants were administering. In my view the Claimants are correct when they say that 'administering the Scheme' means (in whole or in part) running the Scheme, e.g. inviting employees to join, keeping records of members, communicating with members, calculating benefits, providing benefit statements, paying benefits when due, keeping documentation up to date, dealing with governmental or regulatory agencies (Inland Revenue, DWP, OPRA) etc. In the case of a funded scheme, it will also no doubt involve running the fund, investing and managing the Scheme's assets. The ultimate responsibility for all these acts will usually lie with the trustees, but: (1) if someone else carries out the day-to-day running on their behalf that person may be a manager; (2) if someone is otherwise involved with an act of administration for the trustees (whether by carrying out such an act or advising on it) that person may be concerned with the administration of the scheme. But the touchstone is whether he is engaged to act, or advise, in or about the trustees' affairs in running the Scheme."

19. This approach accorded with Ewing. It was contrasted with those who "were simply complying with their contractual obligations under the Policy which reserved to trustees the right to disinvest...". BAML had no right or obligation to enquire into the propriety of the trustees' decisions. They were merely counterparties with whom the trustees had contracted and "were on the other side of the fence".
20. The Court of Appeal upheld that decision in [2002] EWCA Civ 1405. Chadwick LJ, delivering the judgment of the court, also agreed with the decision of the Court of Appeal in Northern Ireland in Ewing. At paragraph 22, he said:

"We accept, of course, that those activities, whether carried out by BULA or by BIM, are administrative in nature; and that they are administrative activities which may be described as being carried out in connection with this Scheme. But the relevant question is not whether a person carries out of administrative activities in connection with a scheme; the relevant question is whether the person is 'concerned with the administration of the scheme'. An insurance company which does no more than administer its own assets and calculate, from time to time, the amount which it is liable to pay under a unit linked policy which it has issued is in much the same position as the trustees' bankers or any other depository. It is no more concerned with the administration of the scheme than others who have contracted to make payments to the trustees or the scheme beneficiaries on request or demand. As we have said, it is significant that the ombudsman's powers to investigate and determine under Part X of the 1993 Act have not been extended to those concerned only with the financing of, or the provision of benefits under, a scheme."

21. The last sentence is of some note. It leaves uncertain, but nonetheless tends to the view, that if the regulations had been broadened exploiting the full powers of section 146(4), as Chadwick LJ noted they had not, the claimants might well have been "concerned" with the financing or provision of benefits of the scheme, ie their limited role was not such as to mean that they were not concerned with the scheme, but only that they were not concerned with its administration and instead were concerned rather with other aspects of it. It was this decision which led to the amendment, and obviously to the precise terms of the amendment made to the Pension Schemes Act in section 146(4A). It is not disputed by GAD but that its role means that it falls within the scope of section 146(4A). Indeed, that is the reason for its concession in relation to the position after 6 April 2005. The issue is whether it falls within the narrower definition before the amendment was made.

The Pensions Ombudsman's decision

22. This is a carefully reasoned decision. It is not said that in a significant way he has applied the wrong test, for the decision addresses the relevant authorities. Nor is it said that he took an irrelevant factor into account or ignored relevant ones. The decision placed considerable, even decisive, reliance on the fact that the obligation on GAD, following the Police Federation case, was a continuing duty to consider revising tables and to revise them if it thought necessary, and that the statutory framework did not permit someone else to do that. The role of GAD was integral to the structure of the FPS.

The issues

23. These were very helpfully narrowed by counsel both in law and in fact. Mr Chamberlain, for the claimant, contended that GAD first was not concerned with the administration of the scheme as it was merely an independent provider of expert judgment based on statistical data. Applying the indicia set out by Lightman J in Britannic, it did not run the whole or even part of the scheme; it did not invite employees to join or keep records of, or communicate with, members; it did not calculate benefits, save exceptionally in circumstances not relevant here; it did not provide benefit statements or pay benefits; it did not keep the scheme documentation up to date, nor deal with government or regulatory agencies; it did not carry out administration or any tasks on behalf of the scheme, nor did it advise on such tasks; it was not obliged to, nor did it actually, run the affairs of trustees or managers.
24. Mr Evans, for the Pensions Ombudsman, urged that the bar to what constituted an administrator should not be set too high. It was an issue of fact and degree which required an examination of the substance of what GAD did. Crucial to its position as a person concerned with the administration of the scheme was its continuing duty to provide tables and to reach its own judgment and act on it about whether the time was ripe for their revision. It was not a mere independent provider of data pursuant to a statutory duty or contract. GAD did what it did to advance the function of the trustees or managers, and in that sense was on their side, rather than performing a uniquely specialist role, as Mr Chamberlain had described it, or counterparty role. GAD was no more concerned with the provision of the benefits than were any others who were engaged in some form of assisting the operation of a pension scheme.

Conclusions

25. The first issue concerns the function of the court, although in the end I do not consider that a great deal turns on it. The question is whether the court has to decide whether the Pensions Ombudsman had applied the correct legal approach to whether GAD was a person concerned with the administration of a scheme, and had then reached a reasonable conclusion as a matter of fact and degree as to whether it did or not; or whether it was for the court to decide for itself whether GAD was concerned with the administration of the scheme. Mr Evans contended for the former, Mr Chamberlain for the latter.
26. I was referred to R v Monopolies Commission ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 HL. The jurisdiction of the Commission could only be exercised in relation to local public transport services if the area of operation to be investigated was "a substantial part of the United Kingdom". The question arose as to whether this decision, which went to the Commission's jurisdiction, was for the reasonable judgment of the Commission applying the correct legal approach, or was for the court. Lord Mustill, with whom the other members of the House of Lords agreed, said:

"On the second question the parties are at odds as to the proper function of the courts. The respondents say that the two stages of the commission's enquiry involved wholly different tasks. Once the commission reached the stage of deciding on public interest and remedies it was exercising a broad judgment whose outcome could be overturned only on the ground of irrationality. The question of jurisdiction, by contrast, is a hard-edged question. There is no room for legitimate disagreement. Either the commission had jurisdiction or it had not. The fact that it is quite hard to discover the meaning of section 64(3) makes no difference. It does have a correct meaning, and one meaning alone; and once this is ascertained a correct application of it to the facts of the case will always yield the same answer. If the commission has reached a different answer it is wrong, and the court can and must intervene.

I agree with this argument in part, but only in part. Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] AC 14. The present is such a case. Even after eliminating inappropriate senses of "substantial" one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement."

27. In this respect, I agree with Mr Chamberlain. The question of whether on the facts found a body falls within a particular description is a question for the court, unless expressly or by necessary implication the question is by statute left for the reasonable judgment of the decision maker of the statutory body applying the legally correct approach. It is a common error to approach such issues as if they were necessarily ones testing the rationality of the application of a legally correct approach simply because the issue arises by way of a judicial review challenge. It is a question of whether the legal phrase covers a particular body or its particular functions so as to give jurisdiction to a regulatory body. That is, on the face of the legislation here, for the court and not for the reasonable judgment of the statutory body. In particular, where the issue goes to the jurisdiction of such a body a court should be wary of permitting a decision to be made on the basis of a reasonable judgment by that body which could be wrong.
28. I also accept Mr Chamberlain's submission that there could not be two views about whether on these facts what GAD did in relation to the FPS involved GAD being concerned with the administration of the scheme. Yet that would be a risk, on Mr Evans' approach: there could be two differing reasonable views taken by differing Pensions Ombudsmen without error of law.
29. The phrase here and the relevant indicators are not so vague as to lead to a necessary implication that Parliament intended them to be resolved by the reasonable decision of the Pensions Ombudsman. This issue was not addressed in Ewing or Britannic, although if there had been an error by the Pensions Ombudsman the matter would have been remitted to him for further decision unless there was only one possible answer on the correct approach. It appears to me more likely that that issue was treated as simply one for the courts but with a clear outcome.
30. The second issue concerns the meaning of a person "concerned with" administration. The phrase "concerned with" seems to me to cover those who, while having a lesser role than trustees, managers or the employer, have some responsibility for running the whole or part of the scheme or some involvement beyond, here, acts of administration. It is a broad phrase. I accept, following Ewing and Britannic, that there are acts of administration in connection with a scheme that fall below acts "concerned with" the administration of the scheme.
31. I also largely accept Mr Chamberlain's litany of the acts which GAD does not do. However, I am satisfied that GAD is concerned with the scheme. GAD is under a duty imposed as part of the structure of the scheme and indeed it is a duty necessary for the proper operation of a part of the scheme commonly used. It is only GAD which can perform that duty. Mr Evans rightly placed decisive weight on the fact that it had a continuing duty to consider revising the tables and, if necessary, then to revise them. It was GAD which had to exercise that expert judgment as to whether it was necessary to revise the tables at any particular juncture.
32. This is not, therefore, a request for information for a fee, nor is this the use of published data as from, for example, RPI. This involves a duty to consider whether to revise tables for the proper and fair operation of the commutation provisions. It seems to me that the fact that GAD does not actually carry out calculations with the tables or make the payments cannot lower the degree of significant involvement or responsibility for an aspect of the scheme sufficiently to take it out of section 146(4) and into section 146(4A) into which GAD would say it fitted. It is far beyond the mere administrative act described by Lord Carswell in Ewing. GAD here is more than a body responsible for carrying out "an act of administration concerned with" the scheme.
33. I also accept Mr Evans' submission that the acts of GAD are done to assist the trustees, managers and employer in their performance of their functions. It is not an act of some benefit to GAD itself. It is not entirely clear how that part of Lightman J's indicia "engaged to act on a particular side" is intended to operate. But it is clear that in that case he was drawing a contrast with somebody in the position of the insurer in Britannic. There is a clear distinction between the role performed by Britannic in that case and the role performed by GAD here.
34. Mr Chamberlain finally, as a new and late argument, submitted that if that conclusion meant that GAD was "concerned" with the scheme in some way, it was not concerned with the "administration" of the scheme but was concerned with the provision of benefits under the scheme and so still fell outside the Pensions Ombudsman's jurisdiction until 6 April 2005. Since as in one sense the whole operation of the scheme is concerned with the provision of benefits, that phrase in section 146 has to be given a much more restricted meaning since it is used in contradistinction to acts concerned with financing the scheme and acts concerned with its administration. Nonetheless, I think it would be wrong to treat each of those three as necessarily watertight and mutually exclusive categories given their breadth. The phrase "the provision of benefits" is not concerned, as Mr Evans suggested it was, with the activities of the investment or fund managers which more readily are concerned with financing the scheme.
35. Mr Chamberlain accepted, as the Pensions Ombudsman had done from the moment of the complaint, that what GAD did fell within section 146(4A), which is intended to elaborate or extend the scope of the phrase in section 146(3)(b), "a person concerned with the administration of the scheme". It does not purport to deal with the definition of the other two aspects of the scheme dealt with in section 146(3)(b), financing a provision of benefits. Section 146(4A) is not an additional type of area of concern. Section 146(4A) concerns the limitation in Britannic on what showed that someone was "concerned" (my emphasis) in the administration of a scheme, rather than with what showed that someone who was concerned with the scheme, was in fact concerned with its "administration" as opposed to some other aspect. Falling within section 146(4A) means that, if "concerned", the concern is with administration.
36. I have already rejected the argument that GAD's acts fall within subsection (4A) and outside subsection (4) because its degree of involvement means that it is "concerned" with an aspect of the scheme. Mr Chamberlain accepts that, examined from the point of view of whether or not its acts are "administrative" in nature, rather than examined from the point of view of its degree of involvement or "concern" with the scheme, what GAD does, does fall within the enlarged definition of what constitutes "administration" in (4A). I see no change as a result of section 146(4A) as to what constitutes administration or acts of administration. That necessarily means that once GAD is concerned with a scheme, the aspect with which it is concerned is administration rather than the financing or provision of benefits.
37. That apart, it also seems to me that the provision of commutation tables is part of the administration of the scheme. The scheme permits commutation, the calculation of which requires these tables. The scheme cannot properly be administered or operated without them. Granted that they are used for the calculation or division of individual benefits between commuted and periodical payments, the duty to consider and provide tables still readily comes under the head of administration even if it is also related to the calculation of benefits. As I say, these are not watertight compartments. My view that Mr Chamberlain's argument in that respect is not well-founded is supported by its comparative youthfulness in these proceedings.
38. I would like to express my gratitude to counsel on both sides for their assistance in this case. However, the claim is dismissed.
39. MR ROSCOE: My Lord, in which case the question is costs. Hopefully my Lord will have received the defendant's statement of costs.
40. MR JUSTICE OUSELEY: I have a statement of costs, but I think it is Mr Chamberlain's.
41. MR ROSCOE: Ours should be fairly easy to spot, in that most of it is blank.
42. MR JUSTICE OUSELEY: It is mostly blank?
43. MR ROSCOE: Mostly blank, apart from counsel's fees.
44. MR JUSTICE OUSELEY: I have the claimant's cost, but I do not have the defendant's costs.

(Handed). Yes.

45. MR ROSCOE: My Lord will see that the Ombudsman is not claiming its costs in relation to the solicitors' fees, but counsel's fees are set out there.
46. MR JUSTICE OUSELEY: Yes. Is there an issue about this, Mr Chamberlain?
47. MR CHAMBERLAIN: No, my Lord.
48. MR JUSTICE OUSELEY: Right. There will be an order for the payment of costs by the claimant to the defendant in the sum of £6,870.
49. MR CHAMBERLAIN: My Lord, there is also the issue of an application for permission to appeal. Can I indicate, my Lord, that no decision has been taken on that. Obviously, we have just heard your Lordship's judgment and we would welcome the opportunity to consider it, in particular to consider it once it has been reduced to writing.
50. MR JUSTICE OUSELEY: Yes.
51. MR CHAMBERLAIN: My Lord, there are two ways that I can provide that opportunity for my clients. The first is to make the application now on a protected basis and invite your Lordship to grant permission; the second is for your Lordship to indicate that I have liberty to make an application for permission to appeal and an extension of time is granted to enable that to happen once the transcript of your Lordship's judgment is available.
52. MR JUSTICE OUSELEY: I am inclined to do the latter, if there is no opposition, Mr Roscoe?
53. MR ROSCOE: We do not object.
54. MR JUSTICE OUSELEY: What I suggest is that you have begun your application, and so I am going to adjourn it to be pursued within 14 days of the receipt of the approved transcript. Otherwise, I would have to extend time to appeal to the Court of Appeal if I were to refuse it anyway, because you would normally wish to have the approved transcript. So I will adjourn the application. Within the 14 days after you have received the approved transcript. The question comes: how is it to be dealt with? I would rather not reassemble everybody. Are you happy to deal with it on paper?
55. MR CHAMBERLAIN: Yes, certainly.
56. MR JUSTICE OUSELEY: If you send in your submission, provide them to Mr Roscoe and Mr Evans within 14 days afterwards. You have seven days thereafter to send in your observations. I hope that does not generate a reply. I will not say you cannot, but you must do that also very quickly. I am going to say seven days. That is 14 days, seven and seven.
57. MR CHAMBERLAIN: I think just for the avoidance of doubt formally it may be necessary for your Lordship to grant an extension because if your Lordship were to be against us on that application, formally speaking time to go to the Court of Appeal would run from today in respect of the order.
58. MR JUSTICE OUSELEY: Would it?
59. MR CHAMBERLAIN: Yes. It runs from the date of the order, rather than the date of refusal of permission.
60. MR JUSTICE OUSELEY: Right, well I will extend time for making any application to the Court of Appeal to 14 days after my decision on your application to me. Is that sufficient?
61. MR CHAMBERLAIN: My Lord, yes.
62. MR JUSTICE OUSELEY: Right. Well, would one of you, I think you were successful Mr Roscoe, will you provide a draft order to the associate?
63. MR ROSCOE: Yes, my Lord.