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
		16 November 2012

1. MR JUSTICE LEGGATT: This is an application for interim relief in connection with a claim for judicial review of certain decisions taken in the course of police misconduct proceedings. The application has been heard this afternoon on the basis that the matter is urgent.
2. The Claimant, and applicant, is a serving police officer. He has been charged by the Cleveland Police Authority with gross misconduct. A misconduct hearing has been scheduled to begin next Tuesday 20 November to last for three weeks. The Defendant is the Chair of the panel which has been appointed to conduct the misconduct proceedings. On 8 November she gave directions for the conduct of the proceedings, which included a decision that the Claimant was required to provide his response to the allegations against him by 14 November and a decision that the hearing should begin on 20 November. It is those decisions of which the Claimant seeks judicial review in this action and which, by today's application, he asks the Court to stay. Such a stay would inevitably result in an adjournment of the hearing. The Defendant is not represented today but the application is strongly opposed by the Cleveland Police Authority, which appears as an interested party.
3. The proceedings are taking place under the Police Conduct Regulations 2008; and in order to understand the issues it is necessary to explain some aspects of those regulations.
4. Regulation 9(1) provides that "proceedings under these Regulations shall proceed without delay". The Police Authority submits - and I accept - that this provision reflects a strong public interest that allegations of misconduct should be determined as quickly as possible insofar as that is consistent with the requirements of fairness. To that end Part 4 of the Regulations sets out a structured timetable for misconduct proceedings.
5. The first step to be taken when a case is referred to misconduct proceedings is set out in Regulation 21(1). That requires the authority as soon as practicable to give the officer concerned:

"(a) written notice of -

(i) the referral;

(ii) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be;

(iii) the name of the person appointed to…conduct or…chair the misconduct proceedings…

(b) a copy of any statement he may have made to the investigator during the course of the investigation; and

(c) subject to the harm test, a copy of -

(i) the investigator's report or such parts of that report as relate to him (together with any document attached to or referred to in that report as relates to him); and

(ii) any other relevant document gathered during the course of the investigation."

6. Regulation 22(1) then provides that, before the end of 14 working days beginning with the first working day after the documents have been supplied to the officer concerned under Regulation 21(1), the officer concerned shall take certain steps which involve, in essence, stating whether he admits any of the allegations and insofar as he disputes them setting out his case in answer. There is provision in Regulation 22(1)(b) for the period to be extended by the person chairing the misconduct proceedings for exceptional circumstances.
7. Then Regulation 24, which is also relevant, requires the misconduct proceedings to take place, in the case of a misconduct hearing, before the end of 30 working days beginning with the first working day after the documents have been supplied to the officer concerned under Regulation 21(1). Paragraph 2 provides that the person conducting or chairing the proceedings may extend the period where he considers that it would be in the interests of justice to do so.
8. Paragraphs 4 and 5 of Regulation 24 provide that the person conducting or chairing the misconduct proceedings shall, if reasonably practicable, agree a date and time for the misconduct proceedings with the officer concerned and that, where no date and time is agreed, the person conducting or chairing the misconduct proceedings shall specify a date and time for those proceedings.
9. It is apparent, therefore, that the basic structure of those Regulations is that the time first of all for service of a response to the allegations and secondly for the hearing is set by reference to the date when "the documents have been supplied to the officer concerned under Regulation 21(1)" - albeit that the Chair has power to extend that time in the case of service of the response for "exceptional circumstances" and in the case of the hearing date "where he considers that it would be in the interests of justice to do so."
10. Issues about the appropriate timetable have been the subject of an ongoing dispute between the Claimant and the Police Authority in this case. On 7 November a procedural hearing took place before the Chair of the panel (that is, the Defendant) to consider the timetable. Submissions were made by counsel and the Defendant issued her decision in writing on 8 November.
11. In that decision she first addressed a contention that the Claimant had not had sufficient particulars of the conduct that was alleged to be gross misconduct. The Chair considered in relation to that submission that some amendment to the particulars which had been served was required, and she directed that clarification should be given in particular of one of the allegations no later than 12 November 2012.
12. The next matter which was the subject of debate at that hearing was when the Claimant was or should be required to provide his response to the allegations pursuant to Regulation 22. The position of the Authority was that time had started to run on 15 October, on which date details of the allegations had been served along with several lever arch files of documents. The Authority maintained that this constituted compliance with Regulation 21(1) with the result that the Claimant's response was required to be provided 14 working days after that date unless the period was extended for exceptional circumstances.
13. The Chair of the panel accepted that position and started her consideration therefore on the basis that the date by which the response was required to be served unless time was extended was 14 working days after 15 October, that is 2 November 2012. She said in paragraph 10 of her decision that in order to extend time she must find exceptional circumstances. She went on to consider submissions made on behalf of the Claimant that there would be the greatest difficulty in complying with the 2 November date and she concluded at paragraph 14 that in the circumstances she should extend the time for the written response until 14 November, which she took to be an extension of eight working days from the deadline specified by the Regulations.
14. The final matter considered at the hearing on 7 November was the appropriate date for the misconduct hearing. Again, the Chair of the panel considered that issue on the basis that the time specified by Regulation 24 as to when the hearing must take place was to be calculated on the basis that the documents had been supplied to the Claimant under Regulation 21(1) on 15 October. On that basis the hearing was required to begin no later than 26 November unless the period was extended. Having considered the circumstances, the Chair concluded that it was in the interests of justice to grant an extension of time, and she directed that the hearing should proceed on 20 November which was a date some days later than the date of 12 November for which the hearing had at that stage been arranged.
15. The Chair of the panel also addressed a submission that pursuant to Regulation 24(4) the Claimant ought to have been consulted about the hearing date rather than having it imposed on him. At paragraph 19 the Chair said:

"I am not persuaded that the Claimant should have been consulted over the hearing date. It was the duty of the Authority to fix that date in accordance with Regulation 24 which envisages consultation only where the Chair has agreed to extend the time for holding a hearing."

16. On this claim for judicial review and on the application for interim relief today, Mr Buttler, on behalf of the Claimant, has contended as his first and principal submission that the decisions taken by the Chair of the panel on 8 November were taken on an incorrect legal basis because, he submits, it was not correct, as a matter of law, to proceed on the basis that there had been compliance with Regulation 21(1) on 15 October so that the time for the subsequent steps in the proceedings began to run on that date. In particular, Mr Buttler submitted that four requirements of Regulation 21(1) had not been complied with on 15 October.
17. First, he submitted that there had not been written notice of the conduct that is the subject matter of the case and how that conduct was alleged to amount to gross misconduct because, he argued, the Regulation must be interpreted as requiring a notice to be served which is sufficient to enable the officer properly to prepare his response; and, submitted Mr Buttler, the effect of the Chair's decision that the particulars of misconduct that had been served on 15 October were insufficient in certain respects was that that condition had not been satisfied.
18. Secondly, Mr Buttler submitted that Regulation 21(1)(a)(iii) requires in express terms that written notice be given of the name of the person appointed to chair the misconduct proceedings; and it is common ground that that was not done until 29 October 2012.
19. Third, he submitted that Regulation 21(1)(c) required the Authority to provide a copy not only of the investigator's report but also of "any document attached to or referred to in that report." The position was, Mr Buttler said, that there were 43 documents attached to or referred to in the investigator's report, as his solicitors have identified, which were not included in the documentation served on 15 October. Therefore, said Mr Buttler, that requirement had also not been complied with.
20. Finally, he submitted that Regulation 21(1)(c)(ii) also required the Authority to provide "any other relevant document gathered during the course of the investigation." The phrase "relevant document" is defined in paragraph 10 as meaning: "a document which in the opinion of the appropriate authority is relevant to the case the officer concerned has to answer." In order comply with this requirement, submitted Mr Buttler, it is necessary for the Authority or its legal representative to consider the documents gathered during the course of the investigation and to form an opinion as to which, if any, of those documents were relevant and then to provide such documents.
21. In this case he said that it is apparent from the correspondence that not all the documents gathered during the course of the investigation had been considered by the Authority so as to enable it to form any opinion as to their relevance; and in those circumstances he submitted that there cannot have been, and indeed still has not been, compliance with Regulation 21(1)(c)(ii). It follows, submitted Mr Buttler, that the time for service of the Claimant's response, which ran from 14 working days beginning with the first working day after the documents required by Regulation 21(1) had been supplied to the Claimant, had not begun to run on 2 November as the Chair of the panel believed to be the case when she was giving her directions. Indeed, it is Mr Butler's contention that time still has not begun to run because he says the period starts only, on the plain wording of the Regulations, after all the documents have been supplied which are specified in Regulation 21(1), and that still has not occurred.
22. In those circumstances Mr Buttler submitted that the Chair of the panel made her decision on 8 November as to the timetable on an incorrect legal basis. Furthermore, Mr Buttler argued that it is implicit in the scheme of the Regulations that the Chair of the panel does not have power to give any directions at all for setting a hearing date until time has begun to run, which it had not on 7 and 8 November. Furthermore, if his submission is right that there has still not been supply of all the documents required by Regulation 21(1), then time has still not begun to run. It follows that it is currently impossible to fix a hearing date. That is the principal argument advanced on this claim for judicial review and in support of the application for interim relief on the merits of the claim.
23. Three other points are taken which I summarise briefly. One, described as the consultation point, is that the Chair wrongly directed herself in considering that she had no obligation to consult with the Claimant in fixing the hearing date.
24. Secondly, it is submitted that she failed to ask herself the right question in that it is not apparent that she recognised fairness to the Claimant as being an essential and indeed overriding consideration to take into account in deciding when the hearing should take place.
25. Thirdly, it is submitted that the Chair of the panel failed to give adequate reasons for her decision. I can deal very shortly with that last point as it does not seem to me reasonably arguable that the reasons given by the Chair were deficient. In my view, the four pages of reasons given were quite adequate to explain the basis for the decisions which she made on 8 November.
26. I am satisfied, for reasons which I will give in a moment, that the principal contention advanced by the Claimant on its claim for judicial review is an arguable one and by the same token that there is a serious issue to be tried applying the principles in the American Cyanamid case. That means that under those principles I must go on to consider whether damages would be an adequate remedy either if the relief sought is granted and the claim for judicial review is not justified or if the relief sought is refused and the claim is justified. It is clear - and I did not understand the contrary to be argued - that damages could not be an adequate remedy in either case. That means that I must then go on to consider the balance of convenience which includes, it is common ground, considerations of the public interest.
27. Mr Buttler submits - and again I take it to be common ground - that the most important of those considerations is fairness to the Claimant. Mr Buttler argues that that consideration in turn leads one back to the Regulations because Parliament has determined what fairness requires in terms of the information which an officer is entitled to have before he is required to answer allegations made against him and before a hearing takes place. If the hearing takes place without the Claimant having had a fair opportunity to prepare for it, he will be irretrievably prejudiced.
28. That last proposition I did not understand to be disputed by Mr Beggs QC who appeared for the Authority. But Mr Beggs argued strongly that there will not be unfairness to the Claimant if the hearing goes ahead next week, and that in any event it is the Chair of the panel rather than the Court who is best placed to make that determination.
29. In addition to the question of the public interest, in which regard as I say it is common ground that the paramount consideration is one of fairness, it is also relevant in assessing the balance of convenience to form a view about the strength of the claim for judicial review. That seems to me to be important in the circumstances of this case for two reasons. In the first place, as I have mentioned, any order for a stay which I make today is likely to in practice finally resolve the issue of whether the claim for judicial review is justified because it is unrealistic to suppose that a further substantive hearing to decide the judicial review claim can be convened soon enough to prevent a delay in the misconduct proceedings. That being the consequence of any decision to grant a stay it seems to me that I should subject the claim to stronger scrutiny than would otherwise be the case.
30. The second reason why I think it right to give more consideration of the merits than is generally appropriate is that the issues raised by the Claimant on this claim turn principally on questions of interpretation of the Regulations. Those issues do not require an assessment of evidence in order to resolve them, and it seems to me that I am probably in as good a position - or in almost as good a position - to form a view about what the Regulations mean today as will be a judge if there is a later hearing, after I have granted permission to proceed with the claim for judicial review.
31. So I go on to consider the arguments which I have summarised as to why the decisions taken on 8 November are said to be unlawful, the principal argument being that the decisions were based on an incorrect view as to whether time had begun to run for service of the Claimant's response and for setting a hearing date which in turn, it is submitted, was derived from an incorrect interpretation of the Regulations.
32. Mr Beggs for the Authority advanced three arguments in support of the contention that time had begun to run on 15 October as the Chair of the panel believed. First, he argued that, where reference is made in Regulations 22(1) and 24(1) to "the documents" having been supplied to the officer concerned under Regulation 21(1), the phrase "the documents" did not mean all the items specified in Regulation 21(1) but only those items specified in sub-paragraphs (b) and (c). It followed that there could be - and he said was - compliance with the requirement to provide the documents even though written notice had not concededly been given of the name of the person appointed to chair the proceedings pursuant to Regulation 21(1)(a)(iii).
33. I cannot accept that that is a reasonable construction of the Regulations. It is true that the Regulations are not happily drafted and that the term "document" appears to have a different meaning in Regulation 21(1)(c) from the meaning that it has in Regulations 22(1) and 24(1). But simply as a matter of ordinary language the term "the documents" seems to me clearly to encompass a written notice as required by 21(1)(a) just as much as the copy of the statement referred to in 21(1)(b) and the documents attached to the report and other relevant documents referred to in 21(1)(c). Furthermore, it would make no sense in my view if the reference to "the documents" in Regulations 22 and 24 did not encompass the written notice referred to in 21(1)(a) because that written notice includes, most importantly, notice of the conduct which is the subject matter of the case and how that conduct is alleged to amount to misconduct and it would make no sense at all, in my view, if time for service of the response could begin to run before written notice had been given of the case which fell to be answered. I therefore consider that the obvious meaning of the phrase "the documents" is the correct meaning and that it must refer to all the pieces of information to be given in writing pursuant to Regulation 21(1).
34. The second argument made by Mr Beggs was that the requirements of Regulation 21 are directory and not mandatory. That, he says, follows from a decision on an earlier version of the Regulations given by the Court of Appeal in the case of R v Chief Constable of the Merseyside Police ex parte Merrill [1989] 1 WLR 1077. It follows, as the Court of Appeal held in that case, that a breach of the Regulations does not of itself vitiate the disciplinary proceedings.
35. I accept that submission but I do not understand the argument to be made here that a breach of Regulation 21(1) of itself vitiates the disciplinary proceedings. Rather, what is advanced is the different argument that, unless and until there has been full compliance with Regulation 21(1), time does not begin to run for the purpose of subsequent Regulations. That seems to me to turn purely on the proper interpretation of these Regulations and the case of Merrill does not assist on that point.
36. The third argument advanced by Mr Beggs is in my view a more substantial one. He submitted that the phrase "the documents" in Regulations 22 and 24 cannot be given a purely literal construction because to do so would defeat the purpose of the Regulations, including the important purpose which is apparent from the Regulations themselves that proceedings should take place without delay. It cannot be right, he submitted, that the failure to provide one relevant document gathered during the course of the investigation can prevent time from running for the service of a response. A purposive interpretation must be given to the Regulations in order to give reasonable sense to them and to make them workable in practice. The interpretation which Mr Beggs submitted should be given, and which seems to me to be at least strongly arguably the correct interpretation, is that the references in Regulations 22 and 24 to having supplied the documents under Regulation 21(1) must be understood as requiring substantial compliance with that provision and that, provided there has been substantial compliance, time begins to run under those later Regulations.
37. What does substantial compliance mean in this context? It would appear to me that, in order to give effect to the purpose of the Regulations, it would be reasonable to construe them as requiring sufficient compliance in order to enable the officer fairly to understand the case that he has to meet and to be in a position without unfairness in the first place to prepare his response to the allegations and secondly to participate in a misconduct hearing. The question of whether there has been substantial compliance in that sense necessarily involves a value judgment. It is necessary to determine whether the officer has had sufficient documentation so as fairly to enable him to prepare his response and participate in a hearing.
38. Mr Buttler submitted that whether the requirements of Regulation 21(1) have been complied with is an objective matter which it must be for the Court to determine. On the view which seems to me to be a strongly arguable view as to the correct interpretation of the Regulations, the Court is not well placed to make the necessary assessment. It seems to me that the Chair of the panel which has been appointed to conduct the hearing is far better placed than the Court could possibly be to assess the sufficiency of the provision of documentation to the officer and whether there has been substantial compliance with Regulation 21(1) in the sense that I have indicated; and it therefore seems to me to be at least strongly arguable that that question is - at least in the first instance and subject to ordinary principles of administrative law - a matter for the Chair to determine.
39. On that view, the conclusion which I would come to on the merits of the claim for judicial review, without making any final determination of the point but on my provisional assessment on the argument that I have heard today, is that the decisions which were taken on 8 November were taken on an incorrect legal basis. At any rate it would follow, if my view is correct, that the Chair did not consider - and indeed was not asked to consider - the question which would need to be determined in order correctly to calculate the date from which time began to run. That would follow because as I read the decision she did not consider - I assume because she was not asked to consider - first of all whether the notice that had been given of the case which the officer had to meet was sufficient to enable him fairly to respond to it. It is true that the Chair made an order for further particulars to be given but it does not seem to me automatically to follow from that fact that she took the view that the officer had not had sufficient notice of the case to enable him to prepare his response. There is a distinction, as I see, it between a case where adequate notice has been given to enable a response to be prepared but further particulars are desirable and a case in which that first and fundamental requirement of adequate notice has not been met; and it is unclear to me from the decision given on 8 November which view of the matter the Chair of the panel took.
40. It is furthermore not clear to me from the decision that argument was directed to the question of the sufficiency of the documentation provided by the Authority; or rather it is apparent that there was a discussion of that point but it does not seem that the Chair was expressly asked to decide whether the documentation that had at that stage been provided was sufficient fairly to enable the officer to prepare his response and participate in a hearing.
41. Going on to deal more shortly with the other points that were taken by Mr Buttler on behalf of the Claimant, it does seem to me on my reading of the Regulations that the Chair did misdirect herself as to whether there was an obligation to consult with the Claimant about the hearing date. I do not think it reasonable to interpret Regulation 24(4) as making the obligation to consult conditional in the way that the Chair took it to be. But it is far less clear to me that any prejudice arose as a result of the failure to consult or at any rate any prejudice which ought to weigh highly in the balance of convenience that I must consider today.
42. The further submission put forward as to fairness is one that it is very difficult for this Court to form any view about. It was submitted by Mr Buttler that it would be unfair to the Claimant if the hearing goes ahead next week because, he said, there has not been a fair opportunity to consider the evidence which will be relied upon. The documents which have not been provided or which are only now in the course of being provided are, he said, important documents and until they are received the Claimant cannot properly complete the preparation of his case.
43. On the other side Mr Beggs asserted that the Claimant has had a large amount of information and as much as he needed to be taking appropriate steps to prepare his case at any rate since 15 October; albeit Mr Beggs accepted that the documentation at that stage was not in satisfactory order but that, he said, was rectified early in November.
44. Another assertion made by Mr Buttler was that the Claimant is not yet in a position to proof properly all the witnesses that he wishes to call. Again, that is disputed by Mr Beggs and it seems to me simply impossible for this Court to determine - at least without a very great deal more information about the allegations, the information which has so far been disclosed and the content of the proceedings - the rights or wrongs of those contentions. It does not seem to me right in principle that the Court should be entering into the arena in that way and attempting to weigh those matters when clearly the body that is best placed to do so is the panel which has been appointed to hear the misconduct proceedings.
45. Drawing the matter together, it seems to me that there has been made out not only an arguable but a very strongly arguable case that the decisions taken on 8 November were taken on a wrong legal basis, at least insofar as they did not have regard to all the factors which I consider relevant under the Regulations in order to determine whether time had begun to run.
46. It does not seem to me that it would be fruitful for proceedings to be delayed whilst this Court seeks to convene a further and fuller argument on the issues about which I have heard argument today. Nor do I think it necessary to do so, because even if the ultimate result of this judicial review were to quash the decisions taken on 8 November, that would not prevent the panel from giving fresh consideration to the appropriate timetable in the case and determining afresh what are the appropriate dates, first for service of the response and secondly for the hearing.
47. In the circumstances it seems to me that the order that I ought to make is to grant the stay which is sought of the two decisions which have previously been taken. But that will still leave it open to the Authority to ask the panel to hold a hearing next week to consider the timetable afresh. I cannot make binding decisions today about how the Regulations are to be interpreted and nor can I determine the dates on which time began to run for the purpose of Regulation 22(1) and on which, unless varied, the Claimant's response was required to be served and the hearing was required to take place. If, therefore, the Authority proceeds next week and the panel makes further decisions about the timetable, there will be a risk of fresh judicial review proceedings being commenced in relation to those further decisions. However, it does not seem to me that any decision that I make today could in any event avoid that possibility, and I have sought at any rate to give some assistance to the parties by giving what can only be provisional expressions of view about how the Regulations are properly to be interpreted and how the exercise should be carried out of ascertaining the basic structure of the timetable - subject to any extensions which the panel may think it right in the interests of justice to grant.

MR BUTLER: My Lord, I am very grateful for that and grateful stay has been granted. The only thing that is left for me to seek is my costs of the proceedings, it being the case that they are effectively going to come to an end and anything that happens in the future would be by way of a fresh claim for judicial review. The Claimant has to all intents and purposes won and the ordinary rule on costs is that the loser pays the winner's costs ought to apply.

MR JUSTICE LEGGATT: What do you say Mr Beggs?

MR BEGGS QC: Well two things. Do I understand the application for costs is made against my client or the Defendant?

MR BUTLER: Yes, against the interested party which sought to defend the matter, not against the Defendant.

MR BEGGS QC: They certainly won on the construction point, I acknowledge that immediately, but it does not follow that costs should be ordered against my client, we would rely on the principles in the Bradford case set out by Lord Bingham. I have the case, can I just hand that one to my Lord?

MR JUSTICE LEGGATT: Yes, I am reasonably familiar with it.

MR BEGGS QC: It is more recently summarised in Perinpanathan in the Court of Appeal. Before it is handed to you, I would also observe what your Lordship has not done is acquiesce to what the original application was for because may I remind your Lordship that what the Claimant was looking for was a massive adjournment and I inferred reading between the lines this may not be a good point for me but I think I ought to raise it as a matter of duty, that you acknowledged the distinct possibility that on Monday or Tuesday next week the panel or the Chair, whichever it must be, reconvenes and takes the very helpful guidance your Lordship has given -- I think we will ask for a transcript to be expedited -- and reconsiders the two key questions 22 and 24. It follows, of course, not least because Regulation 22 has been broadened now provided anyway, as you have seen the 39 page document but it is really probably going to be the listing issue and it is very possible that this case can happily proceed within the time allocation albeit with a further delay, so I just put that in to attenuate the idea this is a clean defeat for the Claimant.

MR JUSTICE LEGGATT: No, I am expressing no view about how or what will happen after this.

MR BEGGS QC: Of course not. My Lord, we rely on the headnote which adequately summarises the dictum from Lord Bingham when he was Chief Justice, which is set out at paragraph 15 and that remains good law: what everyone describes as the Bradford case. In other words, that the starting point in this sort of case where what the police authority was doing was in good faith seeking to promote expeditious proceedings in what no one will dispute were difficult circumstances. I can pick it up at paragraph 15 of the judgment and I am looking at point 3 in the citation from the Bradford case which is paragraph 23.

MR JUSTICE LEGGATT: Yes, "So unless where a complainant"

MR BEGGS QC: "a complainant has successfully challenged"....

MR JUSTICE LEGGATT: ..."acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound."

MR BEGGS QC: "It exercises its public duty that the Court should consider in addition to any other relevant fact" ...(Reading to the words)... "undue financial prejudice."

In this case the criticisms made by your Lordship in relation to the Chair not being invited to ask some of the right questions, your criticism it must be said can be made against Mr Bonnard's team as well in the sense that . . .

MR JUSTICE LEGGATT: You say very simply that the conduct of the Authority has not been unreasonable or improper even if it may have been incorrect; on my view, or at least on any provisional view, in some of its assumptions about what the Regulations meant?

MR BEGGS QC: Yes. We were clearly incorrect one or two points I do not deny that immediately, but equally you found that one of our arguments had substance, that is the point about 'what is substantial' provides, so the appropriate order we say is no order as to costs.

MR JUSTICE LEGGATT: What do you say Mr Buttler about the Bradford case and their applicability here or not?

MR BUTLER: The claim has been defended not by the Chair who it might be said was honestly doing her best, the claim has been defended by the Authority who has stepped into her shoes and decided to contest the claim. It has contested matters throughout and it is notable that the Authority by its skeleton argument sought its costs in the event that it won this argument. So it has been a straightforward fight in a conventional litigation sense between the Claimant and the Authority and there is no basis I would say for departing from the ordinary civil procedural rules.

MR JUSTICE LEGGATT: Are you submitting that these guidelines are not applicable at all or that they are but that . . .

MR BUTLER: I think I may need a little bit more time to think about that. My starting point in respect of costs is that the ordinary principles in judicial review ought to apply in circumstances where an interested party steps in to defend the claim because it has a stake, it has an interest in the outcome. It is only a matter of basic fairness that what is good for the goose is good for the gander, in that if the Authority can properly ask for its costs, it has done, so too ought the Claimant.

MR JUSTICE LEGGATT: Perhaps I can just ask Mr Beggs, what do you say brings the Bradford case into play here whereas it is not on other judicial review, an ordinary judicial review of the public authority?

MR BEGGS QC: Because in this case this is the public authority, the police authority doing its honest and reasonable best to promote proper misconduct proceedings. It provided assistance that was also provided by my learned friend's counsel which, you did not raise these points in the way that it is now being argued and it is, we say, therefore this guidance does apply, even if not on all fours, I appreciate there are distinctions that have been made but the Bradford principles apply to public authority in our position, particularly where the outcome has not been may I repeat what was being sought last week was a massive adjournment - effectively to derail these proceedings to April of next year. That was the thrust, it is a completely different thrust than that which was argued today and where we have ended up is we have been put -- we, more strictly speaking the Chair -- but we have been put right on some legal interpretations and I accept that of course, and the positions we adopted were not unreasonable or they were not made in bad faith or anything like that, and in effect what is going to happen now is on Monday or Tuesday the Chair will (with the assistance of a transcript which we will endeavour to obtain immediately) be asked to readdress one of the two matters which are now left which is the listing matter, and I anticipate what will happen is the hearing will resume -- I am going to anticipate -- a week later, and it will be remembered that the conduct of this Authority was last week to effectively concede the week to start with, and in our skeleton this time to acknowledge that these are very -- for potential purposes we said so at paragraph 4 of our skeleton -- the very thing that in the outcome your Lordship has done if the Claimant persuades the Court he needs more time to prepare. I appreciate I put it on a different basis but it comes to the same thing, the Court should make no order but instead delegate the assessment to the appropriate length of the adjournment to the Chair who can, we said, on Monday receive representations. That is precisely what happened and it would not be -- there is one other point I would like to add, it may or may not be a good point but it is one for your Lordship's consideration. What if ultimately it transpires to be the case, as we contend, that much of the substantive criticism and unfairness is completely misconceived and that this was an attempt by Mr Bonnard, if not by his counsel today, to put this matter off so he could continue to draw salary despite his gross misconduct over five years. Is it really said in those circumstances we should pay the costs? I have conceded the point that we should not get our costs, that is obvious, but we should not pay the costs in all these circumstances. We have done our reasonable best to promote these proceedings.

MR JUSTICE LEGGATT: Thank you. Mr Buttler?

MR BUTLER: I think I am in a better position now to respond to this, having looked a little more at the authority. Could I structure my response in this way? The first point is to draw your Lordship's attention to the relief that was sought. The relief sought is set out at tab 4 page 30. This is paragraphs 52, 53 and 54 of the Statement of Facts and Grounds, so by way of interim relief we sought the stay which we have achieved. By way of final relief the principal matter was an order quashing the impugned decisions. Now of course that is now no longer necessary because the effect of granting the stay is that those decisions fall away, and so in terms of looking at the relief that has been obtained, the Claimant has been substantially successful. My learned friend I am afraid is simply wrong to suggest that this claim for judicial review sought a substantial adjournment of the hearing, it did no such thing it sought to stay of the decision reached on 8 November.

MR JUSTICE LEGGATT: Well I formed the impression at least that the Claimant was hoping that that would have the implication that there would be an adjournment because it was contended that that was a ground for ordering the stay.

MR BUTLER: Well there be will be an adjournment because...

MR JUSTICE LEGGATT: Well there will be some adjournment but.

MR BUTLER: Precisely.

MR JUSTICE LEGGATT: Anyway you got the relief which you sought.

MR BUTLER: We got the relief which we sought. Of course judicial review is a blunt instrument and one has to look at whether the relief sought to have been obtained. It may of course be the case that when the matter is remitted to the decision maker that the decision maker takes broadly the same decision, but that never has a bearing on the costs as awarded in judicial review. It may be that the underlying merits of a Claimant's case is badly founded and so that on remission to the decision maker, his claim fails but that, as I say, never has a bearing on the claim for judicial review and the costs awarded to the Claimant for judicial review. If it were obviously the case that it was the underlying merits of (inaudible) then the relief sought would have been refused on discretionary grounds, so that I respectfully say is a bad point.

In terms of this authority, well, it concerns the power of a magistrate's court to award costs, it does not concern the award of costs in judicial review and the principle of an award of costs in judicial review are governed by the CPR. It is rule 44.3 the loser pays the winner's costs unless there is some cogent countervailing consideration such as conduct or some such matter. Now there has been quite a lot of debate in the Court of Appeal in the case of Barter and M v Croydon about what happens when an authority grants the relief sought without making any concessions as to the correctness of the legality of the decision, but that is really not what we are concerned with here. This is a case where the claim is going to come to an end because the Claimant has come to court and has won the argument before court and has gained the relief sought.

MR JUSTICE LEGGATT: You gained interim relief, but the costs do not always follow the event on an interim application, do they?

MR BUTLER: No, they do not. But the consequence is that the Claimant has as a consequence of getting that interim relief, also obtained the final relief because it is a fact that the decision of 8 November which was to list the substantive hearing on 20 November will not stand, and that is precisely why your Lordship has not listed this matter for a substantive hearing. Otherwise I would be saving the argument I am now making for a substantive hearing and be seeking my costs at the end of that.

The only other point I want to make is that it is said that the submissions which I have made today were not put to the Chair. But of course Mr Martin the solicitor for the Claimant produced a witness statement -- the same witness statement that is produced in the Claimant's bundle -- before the Chair and that articulated precisely the same arguments that I have advanced today. So I cannot speak for how counsel advanced the matter on 7 November but I can say with certainty that these arguments were before the Chair. But I perhaps do not need to go down that line because I am not seeking to recover costs from the Chair, I am merely seeking to recover costs from the party that has chosen to contest these proceedings.

MR JUSTICE LEGGATT: Yes, thank you. I do not find the question of costs entirely easy. I have granted the interim relief which the Claimant has sought but I have not done so on the basis of any determination that the Chair of the panel did in fact take an unlawful decision on 8 November. I have expressed my provisional views about the correct legal basis of the analysis and reached certain conclusions on the balance of convenience. Although the Bradford case is not in my view directly applicable, I think it is a relevant fact that the Authority has in my view acted reasonably and indeed had only very short notice of the case which was advanced today — and a short time in which to decide what to do on this application. In all the circumstances of this particular situation, I do not think it is appropriate to make any order for costs in favour of the Claimant and I therefore make no order as to costs.

MR BEGGS QC: May I just thank you on behalf of Mr Buttler and I for sitting so very late on an anti social day.

MR JUSTICE LEGGATT: I particularly would like to thank the court staff who have stayed so late. Thank you very much; I am sorry you have had to stay so long.