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
		26th November 2014

1. MR JUSTICE IRWIN: I am very grateful to counsel for their great help in making submissions so rapidly but also so effectively.
2. The claimant is a trade union and professional association representing probation officers and probation service officers. The Probation Service falls within the responsibility of the Secretary of State for Justice. The statutory basis for the Probation Service is principally laid out in the Offender Management Act 2007.
3. The defendant has set in train a reorganisation of probation services which is called "Transformation of Rehabilitation". That was implemented on 1st June 2014. In outline, the reorganisation shifts the system from 35 regional probation trusts into a split system. The National Probation Service is responsible for court reports, enforcing breaches of community sentences and supervising high risk offenders. Community rehabilitation companies (CRCs) are responsible for providing rehabilitative courses and supervising offenders at low and medium risk.
4. The defendant wishes to sell the CRCs to third parties. It is anticipated that the defendant's decision on whether to proceed to sale of the CRCs will be taken on or around 3rd December. The defendant takes the point that until that decision is finally taken it is inappropriate to challenge the outcome. At the same time the defendant seeks to avoid disruption of the process of sale.
5. The claimant opposed the transformation programme in principle but has conceded that its arguments were unavailing. The claimant seeks permission to challenge the lawfulness of the decision to proceed with the sale of CRCs if it is taken, unless and until a number of safety issues are established, and critically for this application, established on evidence disclosed to the claimant. Clearly if the defendant decides it is not safe or proper to proceed with the sales the matter will become academic.
6. Recognising that the defendant's desire is to sell the CRCs and anticipating that the decision may be that it is safe to do so, the claimant seeks specific disclosure in this application so as to make a rapid informed application for permission for judicial review if the defendant's decision is to proceed.
7. The defendant rejects the application for disclosure as excessive, unnecessary and disruptive of the defendant's intended programme of sale. In his skeleton argument Mr Weisselberg QC, for the defendant, sets out why the additional disclosure sought is, he says, unnecessary, and contrary to public interest. He says the disclosure of much of the detail sought of the testing of the new system would have a chilling effect in the future on those providing opinions about the processes concerned. He says it is essential that officials within the MOJ, the CRCs and the MPS who are involved in the testing must have a safe space in which to discuss frankly the matters arising. He secondly suggests there are strong commercial reasons why some of the information should not be disclosed. Mr Weisselberg goes so far as to suggest that the judicial review is a deliberate disruption of the Secretary of State's change programme, a vehicle for disclosure and indeed an abuse of process.
8. Directions were given by Ouseley J on 11th and then 18th November successively. The urgency of the matter leads the parties to seek an early hearing of the rolled-up application following as soon as possible after the Secretary of State's decision. I was informed this morning that it was intended the hearing should be on 10th and 11th December.
9. I will today give a reasoned but short ruling so that the parties know where they are and the matter can proceed with minimum delay. I deal briefly with the chronology. In January 2013 the defendant issued a consultation paper on transforming rehabilitation. In May 2013 the defendant made his decisions in response to consultation and published proposals. The transfer of shares in the CRCs to market providers was always a part of the TR programme. The original timetable was that contracts would be signed by the autumn of 2014. Subsequently the defendant has made it clear that he "intends to enter into... contracts by the end of 2014", but that he will not do so, as Mr Weisselberg puts it, until "satisfied that he has sufficient evidence that it is safe to do so" - see the statement of the MOJ's accounting officer before the Public Accounts Committee, as confirmed by letter from the Treasury solicitor of 15th July. The decision whether or not it is safe to enter into contracts will "in practice be made prior to contract award stage 1" and it is that decision which is anticipated on 3rd December.
10. The defendant's grounds of resistance set out the TR procurement process. An invitation to negotiate was published on 21st January 2014 and interim bids submitted on 30th June. Final bids were submitted on 5th September. More than 80 "base bids" were received which were then evaluated by more than 100 members of staff supported by specialist external resources. On 29th October, following evaluation, the defendant announced the preferred bidders. The current timetable, according to the grounds of resistance, provides that:

"Contract award will take place on 5th December 2014 followed by contract exchange on 18th December and the transition/share sale on 1st February 2015."

11. The defendant submits that substantial effort has been made to test the operational model now in place and the consequences of sale of the CRCs. There has been internal assessment and assessment from external agencies including Ernst & Young, Allen & Overy and PA Consulting. A series of test reports has been generated known in the jargon as "test gate reports". I am told that test gate 4 was produced on 2nd October 2014, that being the first post transitional report, meaning the first snapshot of the system after the bifurcation into MPS/CRCs. Test gate 5 was scheduled for 27th November 2014. Once more, as Mr Weisselberg puts it, "the testing process used in this report builds on the earlier analysis and findings from the earlier tests" meaning test gates 1 to 4.
12. The claimant has been given a copy of the criteria to be used and is to receive a summary of test gate 5 report on a voluntary basis. Test gate 5 is to be based on responses from all CRCs. It is anticipated test gate 5 will be a crucial part of the evidence considered by the defendant when taking his decision as to whether it is safe to enter contracts. If the defendant decides to proceed to contract signature, then the defendant has undertaken to provide the claimant, at that stage, with a witness statement, setting out the reasons for the decision and a summary of the evidence on which the Secretary of State has relied . The indication is the witness statement will be accompanied by "some or all of that evidence (as appropriate)."
13. The application before me was filed on 21st November together with the witness statement of Edward Cooper for the claimant. The claimant relies on a series of pre-action request for disclosure. On 18th June 2014 the claimant wrote pressing for information on the basis that if contracts were entered into before information relevant to public safety could be assessed then "it may be too late to obtain relief without prejudicing third parties interests."
14. On 15th July the Treasury Solicitor indicated that test gate 4 would be completed and the results known well in advance of the sale. On 24th July the claimant raised concerns about the content of test gate 4 requesting disclosure. That request was repeated on 1st September. On 11th September the request for the results of test gate 4 and "any other information on which the Ministry of Justice relies to demonstrate the public transfer will ensure public safety" was repeated. On 2nd October 2014 the claimant expressed in a consultative forum it could not make meaning representations without seeing the results of test gate 4. On 8th October the Treasury Solicitor indicated that the defendant would not give disclosure of test gate 4. On 20th October the claimant wrote a pre-action protocol letter submitting that there were specific unsafe aspects of the system and requesting evidence as to risk. On 29th October the defendant gave a short summary of test gate 4 but not the results or indeed the report. A further summary was given on 18th November and the claimant was informed that test gate 5 would be undertaken.
15. I now turn to the law. The relevant principles for disclosure in such cases are set out clearly in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650. The parties are broadly agreed on the appropriate principles, although for understandable reasons lend different emphasis to some rather than others of them. The prime test for disclosure is whether on the facts of the particular case disclosure is necessary to resolve the matters fairly and justly - see Lord Bingham at paragraph 3, Lord Carswell paragraph 32 to 38, Lord Brown at paragraph 56. Even in cases where Convention rights are in issue disclosure is not automatic - Lord Bingham paragraph 3, Lord Carswell paragraph 32. If disclosure is required by the interests of justice it should be ordered unless there is a public interest requiring non-disclosure - Lord Carswell paragraph 37. Disclosure of documents referred to in witness statements is not necessarily always appropriate - Lord Carswell, paragraph 38, Lord Brown at paragraph 51. Where a public authority relies on a document as "significant" to its decision, it is ordinarily good practice to exhibit the document - Lord Bingham paragraph 4, Lord Carswell paragraph 39. There may be reasons arising from confidentiality, volume or other considerations as to why a particular document need not be exhibited - Lord Bingham paragraph 4. But summaries of evidence, even when conscientiously made, may be insufficient or even inaccurate. The document itself can be the best evidence even in circumstances where an accurate summary is provided - Lord Bingham paragraph 4. However, disclosure is only appropriate where the documents themselves add something of value to summaries already provided - Lord Bingham paragraph 5. I note that these principles are consistent with the guidance as to the duty of candour issued by the Treasury Solicitor.
16. Miss Mountfield lays emphasis on the fact that this is a system challenge and/or a proportionality challenge and one conducted under huge time pressure following consistent requests for information, most of which led to little result. She relies firmly on the remarks of Lord Carswell in Tweed at paragraph 32 that the courts should adopt "a more flexible and less prescriptive" approach to disclosure in judicial review, depending on the facts and particularly so where proportionality is in question - see paragraph 39. She relies on similar remarks by Lord Brown in paragraph 53, 56 and 57 of Tweed.
17. In meeting the "safe space" argument advanced by the Secretary of State, Miss Mountfield relies on the approach of the Information Commissioner and the First-tier Tribunal in the Administrative Chamber made in the Department of Health v Information Commissioner [2012] 126 BMLR 110. That was a case concerned with risk registers, an important tool used across government to formulate and develop policy. As the Tribunal there observed the need for a safe space depends on the facts and on the public interest at the time when the safe space is required and, as the Tribunal went on to remark, the safe space is of much less importance when advice has been given, the process of consultation is complete and a final decision is about to be promulgated.
18. Miss Mountfield also referred the court to the order in the case of IS v Director of Legal Case Work and The Lord Chancellor, an order of 1st August 2014, by Sales J (as he then was) the case reference is CO/17381/2013. That matter was concerned with the changes to legal aid provision and she emphasises the breadth of the disclosure there ordered.
19. Mr Weisselberg, in addressing the approach to be taken, begins by emphasising that what is sought here is in his description a "vast shopping list", containing in many instances requests for information which represents "collateral upon collateral". He emphasises that the requests have expanded and then contracted again since the matter was raised before Ouseley J. He submits that many of the documents are not relevant, that disclosure of them would not be proportionate, that there is in many instances no entitlement in public law or on the basis of the Civil Procedure Rules. His central point perhaps as to the approach is that he submits there has been a shift in the way the claimant's case is put, both in detail and in its ambit. Looking back to the grounds for judicial review he, by means of a number of references, suggested that the challenge in the grounds is a rationality challenge to the decision to be taken and in tandem the challenge to the historic disclosure to the claimant, and not a system challenge or a challenge to the proportionality of the proposed sales. This narrow legal basis, he submits, affords only a narrower basis for disclosure. That is the difference between the two sides on that issue.
20. I am faced with this difficulty. Firstly, it appears to me that some of the language in the grounds does foreshadow a system challenge or challenge to the proportionality of the decision. Secondly a pleading point is not of the strongest category of argument given the importance of the issues at stake in a matter of this kind. Thirdly, the claim is based in part at least on the engagement of Article 3 of the European Convention of Human Rights and carries with it therefore a continuing obligation on the part of the court to look at the merits of the claim as put.
21. But perhaps overcoming all other points in importance it seems to me that in a disclosure application I cannot pre-empt, particularly one taken at very short notice and without any considerable focus on the ambit of the claim, should not pre-empt the approach which may by taken in due course by the court seized of the substantive hearing.
22. In relation to Mr Weisselberg's arguments that the context of the political or campaigning background and approach adopted by the claimant is important, it seems to me that it is difficult to carry that to any real relevance to this application. Even if the claimant's approach to the case is fuelled by a political position disapproving of these changes and a desire to prevent them if possible, that cannot be relevant to the issues of law to be decided.
23. It is of course conceivable that a perception that such an approach was being followed has led to more restrictive voluntary disclosure on the part of the Secretary of State than might otherwise have been the case. That too is irrelevant. It seems to me that my responsibility is to ensure, as best as I can, within sensible and proportionate bounds, that the court seized of the substantive hearing is equipped to reach a just and sensible outcome and is equipped to do it in time.
24. In relation to the arguments on behalf of the defendant that the disclosure sought would undermine the confidence of officials in the future to do their jobs properly, it seems to me that is not an argument of great weight. There is no evidence suggestive of that. There is a considerable body of evidence from the senior officials and advisers who have been involved in this process, making their positions extremely clear and it seems to me that Miss Mountfield is correct in submitting that we are here dealing with officials who are alive to their responsibilities, alive to the political (with a small P) space within which they operate and it is highly unlikely that there will be any chilling effect of a proper order for disclosure.
25. Equally I accept from Mr Weisselberg that, at least in theory, some disclosure might impinge on commercial confidentiality. However there is no evidence before me in the application, literally no evidence, setting out what that might be or demonstrating how it should restrict an order which would otherwise be proper. I do accept that it may arise and in so far as it does, a disclosure into a confidentiality ring, the by now traditional mechanism for dealing with such problems in commercial litigation, is the appropriate mechanism. I am very glad to hear that the parties have discussed in the short adjournment how that might be achieved successfully in practical terms.
26. I turn to the specific requests. For the convenience of those here I will be using the draft order attached to the recent witness statement and the claimant's reply to the defendant's skeleton argument. Each form a helpful checklist for what is sought:

(a) The test gate 4 report must be disclosed complete with all annexes and supplements. My reasoning here is that an executive summary may not suffice. This is a critical document. It is of modern or recent origin and should be disclosed by 28th November.

27. In relation to the report on test gate 4, to the two bodies named in the request, the Implementation Systems and Assessment Board and the Programme Board, I make no order for disclosure. It appears to me that this is historic material. It is intermediate thinking. It neither reveals the conclusions advanced to the Secretary of State nor any sensible hard data underpinning them.
28. Request (c) is abandoned.
29. Request (d) is directed "to the summary of results and reports of test gate 4 including the criteria that were rated green, amber and red and the remedial measures identified." If there exists already, as a separate document or documents, a summary of results and reports which is not incorporated into test gate 4 and therefore would represent supplemental disclosure, then that existing document, or those existing documents must be disclosed by 28th November. Equally if there exists a separate document or documents, recording the risk rating employed when formulating test gate 4, that too or those two must be disclosed by 28th November. There is no obligation to create fresh documents covering that ground if they do not already exist.
30. In relation to (e) this is a request directed to records of interviews under test gate 4, conducted by Ernst & Young. I make no order as to the disclosure of these. There seem to me to be no clear basis on which they would add value or to assist court. They are liable to be diffuse and discursive documents, not easily rendered into anything coherent. They do not represent raw data and they are not capable of quantification.
31. Request (f) is directed to the transcripts or records of interviews conducted by the MOJ with heads of the Crown Prosecution Service and with members of the judiciary as part of the preparation of test gate 4. I have considered this request very carefully. I was informed that the notes exist. This request bears on a limited range of relatively senior individuals and there may be included some raw material in there relevant for the assessment of risk. But it seems to me that since the material will necessarily be discursive, derived from individuals and long pre-date any moderation or quantification, on balance it is not right to order disclosure of this. The Ernst & Young overview will be capable of explication in cross-examination or in written questions submitted to the relevant witness, if cross-examination is allowed or otherwise by correspondence, and this is in any event not hard clear quantitative evidence.
32. Request (g) is of the material tests and ratings results presented in moderation meetings. This too is refused. The purpose of a moderation process is to ensure consistency. By definition the outcome is a more balanced view of the same data. It is the outcome of those meetings which will properly have fed into the conclusions and the body of test gate 4. This is liable to be too diffuse and liable to mislead.
33. Request (h) is a request for the "results" of meetings with judicial groups. This request is refused and there will be no order. It is too ill defined. It may not exist in any sensible form and is in any event discursive and not likely to be of help.
34. Request (i) addresses the steps taken to monitor or record requests by CRCs for the escalation of offenders. In order to make sense of that I should pause for a moment. I hope I have understood it properly that what is involved here is a result of the bifurcation already established, a bifurcation which, if the decision to sell proceeds, will mean that different private sector bodies will be making requests of a single public sector body to escalate offenders from the purview of the CRCs into the purview of the MPS. It is therefore important, particularly once and if the CRCs move into the private sector, that a consistent methodology for such escalation is achieved. However, it is not clear to me, listening to the application and looking at the material, what exists at the moment, that would assist in addressing this problem, which I accept is one of the key points raised by the claimant. I do order disclosure of any existing record of escalation requests gathered centrally. If such an existing record does not currently exist, I do order disclosure of such requests which are held in the corporate electronic memory as revealed by suitable electronic interrogation. This is hard data. It is the question of numbers. The data will be present in the corporate electronic memory. It is an important issue and so it seems to me right that the information should be disclosed. However, I make it clear that in relation to this order it need not be fulfilled until 9.00 am on 4th December.
35. Request (j) and (k) are finished.
36. Request (l) is addressed to fortnightly conference calls taken in relation to this process between NOMS, the CRCs and MPS. I make no order in relation to this. It is anecdotal, too diffuse and these records may not exist already or may be very partial.
37. Request (m) is addressed to the requests for access to the relevant computer memory, called in the jargon by the mnemonic ICT , by CRC staff drawn from the MPS records. This request has been refined so that it now relates only to the period from 1st September to 27th November 2014. If such a centrally organised record exists it must be disclosed, otherwise the results of a suitable interrogation of the corporate computer memory must be formulated and released. Here too the data must exist within the corporate memory. This is an important part of the case. It will be quantitative hard data and it does address one of the principal concerns of the claimant. For the reason that it may not exist as a document already, this order need not be satisfied before 9.00 am on 4th December.
38. Requests (n), (o) and (x): these relate to training and guidance. Mr Weisselberg's has confirmed to the court that considerable training and guidance exists although he submits that request is too broad. At the heart of this request is the anticipated major change of the ICT system which is promised for mid-December.
39. If and to the extent that existing training material and documents exist, (and I pause to observe that they must, given that the computer system changes are so imminent,) then those documents should be supplied. No new document need be created. Since it may take a little time to establish what they are, that too does not need to be fulfilled before 9.00 am on 4th December.
40. The same applies to request (q), briefing documents in relation to the ICT changes. Precisely the same order: existing documents relating to the briefing as to the change must be supplied. No new document need to be created and 9.00 am on 4th December.
41. Request (r) relates to the draft report by HMI Probation. It is clear that a draft report has been in circulation internally within the defendant. It is clear that that draft report or perhaps a successor draft will be before the Secretary of State when he takes his decision anticipated to be on 3rd December. However, this is a draft report by a major public body and an order for disclosure, even on a basis which will compel disclosure unless HMI Probation return to court and object, seems to me to be a drastic step.
42. I propose therefore to approach the matter in this way. Firstly, it is open to the claimant to ask HMI to release the draft report in time for the hearing and a sensible deadline would be 4th December for that request. Secondly, it must be the expectation of the court that when the Secretary of State gives his witness statement, which it is clear he will, he should make clear in the course of that witness statement those parts of the draft report or drafts of the report which he has considered, for better or worse, in support of, or against the changes proposed and, at least within the confidentiality ring, attach the relevant portions of the report to that witness statement, so that at that stage anything which he has considered will be available to the parties within the confidentiality ring.
43. At the same time the HMI Probation must be served with a copy of this order and they have liberty to apply to the court to vary this order in any way. That should be on two working days' notice to the parties.
44. Request (t) is a request for any records or documentation concerning the numbers of vacancies for probation officers in the CRCs and the NPS. As I understand the position from Mr Weisselberg, the number of monthly vacancies for probation officers within the CRCs is known and held, but not so with the NPS. One might have remarked that that seems a curious position that the public body, which will remain public, is where the vacancy numbers are not available. It may be thought needs to be given to that. I do order the disclosure of already available figures in existing documents. Those figures should be up-to-date to 27th November, if that is possible but not beyond, and I order disclosure as at 9.00 am on 4th December. I do not order the creation of figures in relation to the NPS but if those figures are available they must be disclosed. If they are not available then of course the matter can be explored in argument.
45. Request (u) and (v) are agreed. Request (bb) addresses operational tests identified by the Solutions in Partnership Team during court visits. This is a report, as I understand it from Mr Weisselberg, which does exist. It was relied on by Mr Spur in his helpful and clear witness statement as being part of the basis upon which he was confident about the future of the system. I order the disclosure of that existing report by 28th November. This a key issue. It is an existing document and relied upon directly by the witness.
46. Request (cc) is abandoned.
47. Request (dd) relates to test gate 5 results and reports. I make the identical order mutatis mutandis as in relation to test gate 4. I will not repeat what that means. I hope that will be clear from the ruling.
48. Requests (ee) and (ff) relate to the reports check point 1 to start with, an existing report relied upon by Mr Spur. That should be disclosed by 28th November. The end state realisation checks from 1st September to 25th November. That again existing documents relied on by the witness should be disclosed by 28th November. I make no order in relation to delivery of any other matters addressed by this request. The request for monitoring of the MPS's ability to deliver sentencing reports seems to me too diffuse and too uncertain to make any order that is practical. Clearly if there do exist reliable central figures about court adjournments because reports can no longer be made available in time, that is an important issue. If such does exist, it will be wiser for the Secretary of State to disclose it but I do not have sufficient basis for making any order at the moment.
49. Those are the orders that I make. I hope they are clear enough for the parties but if there is anything that I could clarify I will be pleased to try.
50. MISS MOUNTFIELD: My Lord I think there was one...
51. MR WEISSELBERG: While my learned friend looks. In relation to (i) and (m) where your Lordship has ordered searches to be undertaken.
52. MR JUSTICE IRWIN: Yes?
53. MR WEISSELBERG: May I have permission to apply? Why I ask for that is suppose we start down the process of trying to identify the material --
54. MR JUSTICE IRWIN: And find you cannot.
55. MR WEISSELBERG: Either we find we cannot or we find the process is simply going to take so long and so disproportionate that we are likely to come back to court. I would ask on that basis. Those are the only two where your Lordship has ordered additional steps to be undertaken. I would ask for permission to apply.
56. MR JUSTICE IRWIN: You cannot object to that, can you?
57. MISS MOUNTFIELD: I do not object.
58. MR JUSTICE IRWIN: What I will say is, yes, you do have permission to apply. You can do so in the first instance in writing rather than necessarily having the inconvenience of a hearing. Obviously if the claimant wishes a hearing there will have to be one. I reserve those applications to myself or to the judges allocated to the substantive hearing. I do not think it will be sensible for them to go off elsewhere.
59. MR WEISSELBERG: I think the ability to explain is exactly what has happened take longer than the researches themselves will take.
60. MISS MOUNTFIELD: My Lord, I am searching and failing to find the place where you talked about something that was "reference held centrally". I wanted to clarify there were seven MPS histories if it was held not necessarily course ... I do not know exactly how it was held there on a mutual basis. I wanted to make sure it was narrowed down and I understand what you mean is.
61. MR JUSTICE IRWIN: I think what it means --
62. MISS MOUNTFIELD: Mind of NPS rather than round place middle managers. I want to clarify that.
63. MR JUSTICE IRWIN: "Centrally" almost certainly here means NPS. "Centrally" for these purposes I would have thought means National Probation Service centrally, MOJ centrally, or HMCTS centrally, conceivably.
64. MISS MOUNTFIELD: I am very grateful.
65. The other thing is you said 9.00 am on 4th December which coincides with the order of Ouseley J. Please can we say 4.00 pm on the 28th? The reason I ask is after that we lose the weekend unless it is very critical. If there was delay and the 4.00 pm deadline it creates practical difficulties.
66. MR JUSTICE IRWIN: You want midnight.
67. MR WEISSELBERG: My learned friend says please can we have a time that is later than midnight. Perhaps say 4.30.
68. MISS MOUNTFIELD: I just (inaudible) close of business on Friday not start of business on Monday.
69. MR JUSTICE IRWIN: That probably makes sense for everyone. So 4.30 on the 28th. I am conscious here we are on the 26th, it is only two days.
70. MISS MOUNTFIELD: My Lord, the next application I make, I hope it is not positively opposed but on the other hand we need to make the application rather than agree. At the moment there is an order - may be imposed I may be wrong - at the moment there is an order that we serve any evidence in reply to the evidence that was served on the evening of 17th November, by 4 o'clock tomorrow. This hearing until very late, Monday afternoon ... yesterday, please can we have another ... may be lunch time on Friday to do that because that would enable us to address matters that have apparently arisen during the course of today. I do not understand there to be any prejudice.
71. MR JUSTICE IRWIN: Yes.
72. MR WEISSELBERG: I am in your Lordship's hands.
73. MR JUSTICE IRWIN: We will say 3 o'clock on Friday?
74. MISS MOUNTFIELD: I am grateful.
75. The final point is that it appears to be common ground that costs of this disclosure application to be costs in the application. I note that at paragraph 95 of his skeleton argument Mr Weisselberg said that an application was misconceived and should be dismissed and we should be ordered to pay the Secretary of State's costs. As one found it is not misconceived, substantial parts of it were proportionate and necessary. I would ask for an application of 75% of the claimant's costs of this application.
76. MR JUSTICE IRWIN: I am going to reserve costs to the judges who decide the eventual substantive case.
77. MISS MOUNTFIELD: I have been asked if we can have a transcript of the judgment as soon as possible?
78. MR JUSTICE IRWIN: I imagine that might help everybody.
79. MISS MOUNTFIELD: It might. Perhaps we can see where we get to with a note. That would be helpful.
80. MR JUSTICE IRWIN: If you want an expedited transcript somebody has to pay a fee, so you might want to think who is going to pay the fee. Otherwise it does not get expedited, this being the Ministry of justice.
81. MISS MOUNTFIELD: We will share.
82. MR JUSTICE IRWIN: I would have thought so.
83. MR WEISSELBERG: We can discuss that outside court.
84. MR JUSTICE IRWIN: Certainly you can have an order for an expedited transcript subject to that but I know that is what often people when people leave.
85. MR WEISSELBERG: My Lord, I do ask for permission to appeal. I ask for permission to appeal on this basis. Your Lordship has found an unfocused request and has not descended into detail as to the pleaded case. On that basis I invite your Lordship to say there is an argument for the Court of Appeal.
86. MR JUSTICE IRWIN: Thank you Mr Weisselberg. Charmingly put, but no.