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
		21 January 2015

MRS JUSTICE ELISABETH LAING:

1. There are three applications before me today. The first is an application for continuation of a prohibition order made by Foskett J on 2 July 2014 (which I shall refer to as "the prohibition order"). That froze over £100 million worth of assets which the United States of America alleges represent proceeds of the frauds of General Abacha and his associates. The second application, by two Respondents, which I shall refer to as "the Blue Companies", is for an order for disclosure by the National Crime Agency (which I will refer to as "the NCA") of the letters of request for mutual legal assistance sent by the United States of America to the United Kingdom. The third is an application for variation of the prohibition order to permit the Blue Companies' legal expenses to be met from the assets that were frozen pursuant to the prohibition order.
2. The procedural background is set out in the skeleton argument prepared for the NCA by Mr Hall QC and Alexandra Cook. I have also read the skeleton argument prepared by Mr Stanley QC and by Mr Peters. I refer to Mr Hall QC and Mr Stanley QC as"Mr Hall" and "Mr Stanley" respectively, just for the sake of brevity, and not meaning to indicate any disrespect to them.
3. So, as I have said, the prohibition order was made by Foskett J on 2 July 2014. At that stage there was a commercial freezing injunction in place in respect of the same assets which are the subject of the prohibition order. That had been obtained by the United States of America from Teare J on 25 February 2014. It was continued by Field J in April 2014. There was then an appeal to the Court of Appeal against the freezing injunction by the Blue Companies. The Court of Appeal allowed that appeal on the grounds, I am told, that it was not appropriate for an ordinary freezing injunction to be granted by the court in circumstances where there was a discrete statutory scheme applying to cases such as this case.
4. The prohibition order was expressed to take effect on the discharge of the freezing injunction. The freezing injunction was discharged on 9 October 2014. That brought the prohibition order into effect. The prohibition order has been varied by consent. I do not need to deal with details of that.
5. The prohibition order is an order in aid of proceedings in the United States in rem against assets which are said to have been derived from unlawful conduct, as is explained in the skeleton argument for the hearing on 2 July 2014.
6. There was a letter dated 16 January 2015 from the United States Department of Justice (which I will refer to as "the DOJ"). That indicated that significant progress had been made on the claim in the United States. A forfeiture judgment has been obtained from the US District Court for some US$477 million. Some of those funds are located in the United Kingdom, about $23 million. The court making that decision concluded that:
7. "Based on the government's well-pleaded allegations in this verified complaint….that [the forfeited] the defendant assets….were involved in transactions in violation of 18 USC paragraphs 1956 and 1957, or are traceable to such property."
8. That judgment is currently subject to an appeal. The United States continues to litigate in relation to the remaining US$148 worth of assets, with a hearing of a motion scheduled for early February 2015.
9. The legislative scheme
10. The power of the court to make or to continue prohibition order is conferred by Part 4A of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005/3184 (which I will refer to as "the 2005 Order", as amended. A prohibition order is an order that specifies or describes the property to which it applies and (subject to any exclusion) prohibits any person whose property it applies from dealing in any way with that property."
11. The NCA has summarised the effect of the statutory provisions as follows. Since the 11 November 2013 a court may on the application of the NCA, which is an enforcement authority, make a prohibition order if satisfied that

(1) it concerns property in England and Wales (a) in respect of which there are reasonable grounds to be believe that it may be needed to satisfy an external order (that is, an order made by an overseas court where property is found or believed to have been obtained as a result of or in connection with criminal conduct, and is for the recovery of specified property or a specified sum of money) which has been, or which may be made; and (b) which is identified in an "external request" that is "a request by an overseas authority to prohibit dealing with the relevant property which is identified in request." I will refer to that as "the first condition".

(2) Proceedings have not been taken in relation to the property under Chapter 2 of Part 5 of the 2005 Order. I will refer to that as "the second condition". Chapter 2 of Part 5 provides for the enforcement of "external orders" in the United Kingdom and is also the machinery which would be used to enforce any final order made by the United States courts. There is, as yet, no final order in this case.

(3) None of the exceptions listed in article 141F apply in respect of the relevant property. I will refer to that as "the third condition".

12. The background to the application
13. The NCA submits that, for the reasons set out in its skeleton argument for the 2 July hearing, the first, second and third conditions are met. The NCA relies on a witness statement by Katrina Angliss dated 19 January 2015 seeking a continuation of the prohibition order, and relies in particular in that context on the first witness statement of David Templeman dated 27 June 2014 (that the witness statement that was made in support of the application for the original prohibition order), and on the DOJ letter to which I have already referred, which sets out the continued need for the prohibition order, and which is exhibited to Miss Angliss' witness statement.
14. So that is the background to continuation of the prohibition order. Save to a limited extent, a procedural point really about the return date, continuation of the order is not opposed by the Blue Companies, subject to the disclosure point which I will deal with in a moment.
15. The disclosure application is for the letters of request on which triggered the making of the prohibition order. The statutory requirement under article 141C of the Order is that "….the court should be satisfied that an application for a prohibition order relates to property which is specified in an "external request"." The evidence about that is in Mr Templeman's affidavit. He states that the formal request for mutual assistance was received by the United Kingdom Central Authority from the United States of America. He furthers states that the property which was the subject of the application was "identified in the external request" from the DOJ and further, that the property which was the subject of the application was "relevant property identified in the external request received from the DOJ, and that that external request asks the United Kingdom prohibits the Respondents from dealing with the property so identified."
16. I pause there. Mr Stanley on behalf of the Blue Companies accepts, I think, that the property has been properly identified in the evidence before the court. The Blue Companies are seeking inspection of the requests for assistance and they argue that without that prohibition order ought to be discharged. So that is the disclosure application.
17. Submissions on the disclosure application
18. The submissions made about that by the NCA are really these. It is submitted that it is not a statutory requirement, or a requirement of the relevant legislative scheme, that the relevant external request is produced or disclosed, either to obtain prohibition order, or to prevent it from being discharged. All that is required, it is submitted, is that the court must continue to be satisfied that there has been a request by an overseas authority that prohibits dealing with relevant property which is identified in the request. The submission on behalf of the NCA is that to make the continuation of the prohibition order conditional on disclosure of the letters of request would be to insert an additional requirement into a carefully formulated statutory scheme and that there is no basis for any such requirement in the language of the legislation.
19. The second submission made by the NCA is that there is clear and unambiguous evidence that the statutory conditions had been satisfied and that it continues to be appropriate for the prohibition order to stay in force, and there is no reason for the court to require disclosure of the letters of request in its discretion on the facts of this case. It is submitted that Mr Templeman's affidavit is evidence that the United Kingdom has received the relevant external request and that the external request relied on identified relevant property.
20. It is submitted that the witness statement of Miss Angliss, and the DOJ letter which is exhibited to it, show that the prohibition order needs to continue in force. It is further submitted that there is no suggestion that Mr Templeman is not telling the truth about these matters. In their letter of 19 December 2014 the Blue Companies said that

"Mr Templeman's view of the request for legal assistance is not a sufficient basis for the order regardless of his honesty." That argument is not accepted by the NCA. It is submitted that Mr Templeman's evidence, not view, about the existence of the request, and the fact that the property is subject to the prohibition order is specified in it, are both clear. It is important, I think, that this is accepted by Mr Stanley.

21. It is further submitted by the NCA that his evidence was sufficient to satisfy the court on 2 July 2014 that the requirements for a prohibition order are met and it was not suggested by the Blue Companies at that hearing that the prohibition order could not be made without disclosure of the requests. It is submitted that this evidence remains sufficient, particularly since in substance, it is clear from correspondence on behalf the Blue Companies that Mr Templeman's credibility is not in issue.
22. The NCA goes on to submit that what Mr Templeman has stated is consistent with the procedural history of the case, as is known to the Blue Companies. Firstly, the United States' claim, of which the Blue Companies are aware, is about the very same assets located in United Kingdom which are the subject of the prohibition order. Secondly, the United States of America has asked the United Kingdom for assistance with freezing those assets in the United Kingdom. In other words, it made the external request (which the United Kingdom originally declined). As a result of that the United States of America obtained the commercial freezing injunction over the very same assets which are the subject of the prohibition order. In response to that, the United Kingdom reconsidered its position, and made the application in July for the prohibition order. In these circumstances it is submitted that the idea that, for example, the "external request" is likely to have referred to fewer, or to different, assets than those which were subsequently the subject of freezing injunction, is a nonsense.
23. A further submission made by the NCA is that the Blue Companies have not made out any basis for an entitlement to disclosure of the "external request" in particular because a well-established confidentiality attaches to inter-State communications, such as requests. I will deal with that point in more detail below. It is further submitted by the NCA that although the Blue Companies have inferred from documents exhibited to Mr Templeman's affidavit that there are 6 documents requesting mutual legal assistance, no such document or documents is or are "mentioned" in Mr Templeman's affidavit, within the meaning of CPR rule 31.14, which requires a specific identification of an actual document or documents. In none of the paragraphs of Mr Templeman's affidavit on which the Blue Companies rely does Mr Templeman actually mention the documents to which the right to inspect under rule 31.14 attaches.
24. The NCA goes on to submit that even if, which it does not accept, the Blue Companies have any prima facie entitlement to inspection pursuant to rule 31.14, the court has an inherent jurisdiction to prevent such inspection if it is not necessary for the fair disposal of the action. In that context the NCA refers to the decision of Morgan J in Danisco A/S against Novozymes A/S (No. 2) [2012] FSR 22, at paragraphs 72 to 73. It is submitted that there are very good reasons why the court should not require the documents (which are alleged by the Blue Companies to exist) to be disclosed. In summary, it is submitted that requests for mutual legal assistance are, by treaty, confidential. There is no presumption in favour of disclosure of requests for mutual legal assistance. Indeed the presumption is against disclosure. That may be rebutted if it is in the interests of justice for disclosure or partial disclosure, to be made. There is no unfairness here. The Blue Companies failed to advance any (or any good) reason for requiring inspection of documents which, they infer, exist and/or why Mr Templeman's affidavit is not a truthful or accurate representation of the position.
25. Finally, it is submitted that the United States has specifically confirmed in the DOJ letter that it does not consent to the disclosure of any request for mutual legal assistance.
26. Mr Stanley's submissions about the disclosure application are essentially, firstly, that the letters of request lie at the heart of the NCA application. Without them the application could not have been pursued at all. They are therefore of critical relevance to that application and must be disclosed to the Respondents. He goes on to rely on CPR Part 31.14(1)(b) which, he submits, confers a right on the Blue Companies to inspect the letters of request. He also refers to CPR Part 31.15(b) which he says imposes an obligation on the NCA to permit inspection of requests within 7 days of a written request for such inspection.
27. He deals with the NCA's argument in this way. So far as the argument concerning Mr Templeman's honesty is concerned, he submits that that is based on the proposition that a party does not need to disclose documents that are central to its case unless there are specific challenges to the honesty of its description of those documents. He submits that that proposition is unprincipled and absurd, and that English civil litigation proceeds on the footing that parties must disclose documents which are relevant to their respective cases including all the documents on which they rely. The courts do not expect one party of the litigation to take the other party's gloss on the relevant documents at face value.
28. In any event, Mr Stanley submits that the NCA's reference to there being no challenges to Mr Templeman's credibility is a bit of a red herring. The court has to be satisfied before making or continuing prohibition order that the legislative requirements specified in the 2005 Order have been satisfied. Whether those are satisfied is a mixed question of fact and law. Mr Stanley says that Blue Companies cannot properly address that question unless they have seen the requests. He then sets out the potential scope of the relevant legal analysis by reference to the three legislative conditions to which I have already referred.
29. A prohibition order may only be made in respect of relevant property which has been identified in external request. The property must be relevant property, and there must be reasonable grounds to believe that it may be needed to satisfy "an external order". It is not enough, he submits, that property subject to the foreign proceedings is identified in the request. This is because of the definition of "external order". The definition requires among other things that the order must be made by an overseas court where property is found or believed to have been obtained as a result of, or in connection with, criminal conduct. He says this point is significant because United States money laundering law is wider than the United Kingdom equivalent. He submits that the Blue Companies are unable to go any further without having seen the requests.
30. As to the NCA's confidentiality argument, he submits that the bare assertion of confidentiality is no answer to a claim for disclosure. In that context he refers to Hollander on Documentary Evidence. He submits that the NCA has not raised in correspondence any assertions of confidentiality which relate specifically to these requests. Instead it seems to be asserting a general claim that all external requests for mutual legal assistance are confidential and should not be disclosed.
31. He submits that the NCA's reliance on its policy is a hopeless argument. The NCA does not have the power, whether by issuing policy documents, or otherwise, to re-write disclosure obligations. As far as it goes, I accept that argument. He also submits that the NCA has not put forward any proper basis from which it could be thought to be entitled to avoid its obligation to permit inspection requests under CPR 31.14.
32. So in short, those are the parties' submissions on the disclosure application.
33. The Variation Application
34. The variation is an application by the Blue Companies to enable their legal costs to be paid from the assets which have been frozen and I don't think I need to say anything more about it at this stage.
35. Discussion
36. I am going to deal with the disclosure application first because it seems to me that that is the logical place to start. I accept the submission that there is no requirement in the legislative scheme that letters of request should be disclosed. The position is that the court has to be satisfied that the three conditions I referred to earlier are met.
37. The argument really concerns whether the property has been specified in the request and whether it is "relevant property". As I understood Mr Stanley's submissions, he did not really dispute that the property had been specified. The real dispute concerns whether or not the property is "relevant property". Mr Stanley submits in effect that whether property is "relevant property" as defined involves questions of assessment and judgment and that the court and his client cannot be satisfied that the property is relevant property without seeing the letters of request.
38. I am satisfied that the property is "relevant property" and I am satisfied that it is "relevant property" on the basis of the material in Mr Templeman's affidavit. In my judgment there is ample material in, and exhibited to, Mr Templeman's affidavit from which it is clear that the property identified in the letters of request is relevant property. Mr Hall took me to one example this morning in what I described as a "mini tracing exercise" through the documents. It seems to me that there are reasonable grounds (and Mr Stanley accepts that that is a lower threshold than clear evidence), to believe that that property is "relevant property".
39. Now, if that material satisfies me that there are reasonable grounds to believe that this is relevant property, it seems to me that there is no need for the Blue Companies to see the letters of request in order to satisfy themselves that the property is relevant property. Mr Stanley's clients do not attack Mr Templeman's credibility. I accept his evidence that the property is property which is identified in the letters of request, even though I have not seen the letters of request. I am also satisfied that it is relevant property, even though I have not seen the letters of request. I am satisfied that without seeing the letters of request that those two elements of the statutory requirements are met. It follows that I do not accept Mr Stanley's submission that the letters of request have the centrality to this application for which he contends. The existence of the letters of request, by which I am satisfied on the basis of Mr Templeman's affidavit, is a precondition for making order but in my judgment it does not have the central importance which Mr Stanley attributed to it.
40. Now, given that I am satisfied of those matters without having seen the letters of request, are Mr Stanley's clients nonetheless entitled to disclosure of the letters of request? Mr Stanley is right in submitting that CPR Part 34.14(1)(b) of the CPR confers on its face the broad entitlement to inspect documents which are referred to in, for example, witness statements.
41. I assume without deciding that the letters of request are referred to in Mr Templeman's statement. I have to say I am inclined to think that the letters of request are referred to in general term in the witness statement. Mr Stanley submits that the normal position is that key documents in a case are disclosed pursuant to CPR Part 31. He gives the example of a contract in a contract claim. I of course accept that submission. I also accept the submission from Mr Hall that the entitlement to inspect is not, however, unfettered; see in particular the Danisco case, which I have already mentioned. I also accept Mr Stanley's submission that there is a burden on the NCA to displace normal rule that a party should have disclosure of documents which are referred to in court in a witness statement.
42. The question is whether inspection is necessary for the fair disposal of the action. In my judgment the NCA has satisfied me that Mr Stanley's clients have all the material that they need in order to challenge the order, and, in particular, to argue, if they wish to, that the property identified in the letters of request is not relevant property. It is notable, in my judgment, that even with the material that they do have, no such challenge has in fact been made. Mr Hall submits, and I accept, that the expectation based on custom is that communications between foreign states are confidential, presumably for reasons of international comity. It has been confirmed by the DOJ that it wishes to maintain the confidentiality of these particular letters of request. The reason for not ordering disclosure of letters of request, though in some cases it might yield to considerations of justice, is that such letters are confidential. There are no such considerations in this case, in my judgment, precisely because seeing the letters of request is not necessary for the fair disposal of this application. For those reasons therefore I dismiss the application for disclosure.
43. The variation application
44. Although there are I think some technicalities involved, in substance both sides agree that the court has power to vary the order so as to provide for the payment from the frozen assets of legal costs as sought by the Blue Companies. On the limited material I have seen, I infer that Mr Bagudu is the settlor of both of the Blue trusts and that the beneficiaries of both are his family. He is a discretionary beneficiary of one of the trusts. I also infer from one of the documents I have been shown that he has received a distribution from one of the trusts, and I infer that he exercises a degree of control over the trusts. Mr Stanley asked me to make clear in this judgment, and I do so now, that the material I have seen is limited, and that his clients dispute these inferences.
45. The question for me is whether the Blue Companies have discharged the burden of persuading me that a variation to the order so as to permit payment of legal costs is just. I have been referred to a number of cases and the position appears to be that no very clear principle is disclosed by those cases. It seems that the court is entitled to have regard to the history of transactions between the relevant parties, in particular to the pre-order history; but it seems to me that all the history is relevant in that context.
46. Mr Stanley very fairly accepts that Mr Bagudu would be willing to fund the litigation. He is willing to do so if there were no other sources of funds. The question, submits Mr Stanley, is whether it is just that he should be required to do so when the assets which have been frozen, and from which the costs would be paid are not his assets but the trusts' assets.
47. So far as the history is concerned, it is clear, whether by way of loan, or otherwise, that Mr Bagudu has so far paid the costs of the application up until, I think, August of last year. It is also clear, I consider, that he paid the costs of the freezing injunction proceedings in the Commercial Court. So there is a history of Mr Bagudu's having paid these costs voluntarily. Not only is there that history but there are also the inferences to which I have just referred, which show that Mr Bagudu has a very close connection with the Blue Companies and that his interests are very closely aligned with the interests of the Blue Companies. I have no reason to think that Mr Bagudu would not continue to pay the costs of the Blue Companies, whether or not he is under any legal obligation to do so. It seems to me that there are reasonable grounds to conclude that the funds to pay the costs would be available from a source other than the frozen funds and that that source, on the balance of probabilities, would be Mr Bagudu. It therefore seems to me that it would not be just for me to allow the variation which is sought by the Blue Companies. I refuse the application for variation.
48. The continuation of the order
49. It follows from what I have said that like Foskett J, I am satisfied that the three conditions for making, and, in this case for continuing, the prohibition order are met. I therefore order that the prohibition order continue. Subject to the provisions that were discussed in the course of argument about the respondents who have not in fact been served, I would make an order in the terms sought.
50. I should just deal with the question whether there should be an undertaking in relation to service. Having heard what Mr Hall said about that in open court, I do not consider that it would be appropriate for me to ask for the NCA to give an undertaking about service. It is of course obvious that the liberty to apply which is contained in the original order will continue in any event. Is there anything --
51. MR HALL: Thank you very much. We ought to draw up a draft order, send it to Mr Stanley and forward it to your Ladyship for approval. Can I deal with costs? We got an application for costs of the two unsuccessful applications made against us.
52. MRS JUSTICE ELISABETH LAING: Yes.
53. MR HALL: We are not applying for our costs in relation to the making of the order. We are going to ask for those to be costs in the case.
54. MRS JUSTICE ELISABETH LAING: Thank you very much.
55. MR HALL: My Lady this schedule has a grand total on the penultimate page of £9,407.59.
56. MRS JUSTICE ELISABETH LAING: Yes.
57. MR HALL: I should apply to add to it because you will see that counsels' fees to the hearing were, well they were in fact for half a day, a further £770 if you double mine and double Mr Cook's. So the total we would seek is £10,177.59.
58. MRS JUSTICE ELISABETH LAING: Sorry £10,177 and --
59. MR HALL: 59p and we would ask that order will be made jointly and severally against the 2nd, 5th and 6th respondents. Although the second respondent is not a party to the disclosure application, he is the settlor and a beneficiary and exercises control and it would be appropriate to make an order in the most effective way to ensure covering those circumstances.
60. MRS JUSTICE ELISABETH LAING: Yes. Mr Stanley, what do you say about that?
61. MR STANLEY: I do not resist the costs order. There is a lot of unhappiness from behind me and let me explain it to. It is probably my fault.
62. MRS JUSTICE ELISABETH LAING: Yes.
63. MR STANLEY: Your Ladyship has made in the course of her judgment two inferences. I think three inferences in fact.
64. MRS JUSTICE ELISABETH LAING: Right.
65. MR STANLEY: They were all inferences which for the first time were put forward by the NCA. There is no evidence put forward by the NCA to this effect but they were put forward by Mr Hall in submissions. I didn't deal with them as I thought it was not necessary to do so.
66. MRS JUSTICE ELISABETH LAING: Right.
67. MR STANLEY: They are these: the first thing he says it is to be inferred that Mr Bagudu it was the settlor.
68. MRS JUSTICE ELISABETH LAING: Right.
69. MR STANLEY: In fact my Lady he is not and it does not matter to your Ladyship's judgment but there is no evidence that he is the settlor. I cannot stop your Ladyship from saying that you would draw that inference --
70. MRS JUSTICE ELISABETH LAING: Yes.
71. MR STANLEY: -- but it is a slightly unfair thing. It may matter a lot and the reason why there is such uncertain unhappiness, is that it may be hugely hugely important in the US proceedings where this may be a hotly contested issue. We did not come here thinking that that was going to make the blindest bit of difference to any decision nor were there any suggestion that anyone was saying that Mr Bagudu is the settlor.
72. MRS JUSTICE ELISABETH LAING: Right.
73. MR STANLEY: The second inference that you drew was that from a distribution it was inferred that a distribution was paid to Mr Bagudu. Not an inference that one could draw in circumstances with respect where there are large number of beneficiaries of the trust and again, I am told in fact wrong but I don't see that it makes any difference to your Lordship's judgment and the third thing I think you said is that it was to be inferred that Mr Bagudu exercised control over the trust and again it does not matter because it is irrelevant entirely to the decision that your Ladyship made, but there is in fact no evidence at all that Mr Bagudu exercise his control of how the trust conducts it business.
74. The reason I raise those things now is that the profound concern from behind me is that because I have not made the submissions that I have effectively just made in the course of my reply submissions to Mr Hall (which is my fault), it will subsequently be said, oh look, the English judge made these findings. These are binding on you. The English judge has found that Mr Bagudu is the settlor and this will turn out to be a huge problem and something which did not seem to matter for an application will --
75. MRS JUSTICE ELISABETH LAING: I do see that point.
76. MR STANLEY: And that is the reason I raise it now because I don't think I should leave court without having tried to put right what was in fact my fault.
77. MRS JUSTICE ELISABETH LAING: No. You are quite right. What I will certainly do when I come to correct the transcript is to make clear that those were inferences drawn on the basis of very limited material and it was not an issue the case.
78. MR STANLEY: Yes.
79. MRS JUSTICE ELISABETH LAING: And this is an interlocutory application and if anyone wants to rely on it for anything else, I thought (Inaudible) but anyway.
80. MR STANLEY: I think that needs to be made clear and if your Ladyship were able to say or made it clear that we did not accept that, I think that is an important thing to put on the record.
81. MRS JUSTICE ELISABETH LAING: Yes.
82. MR STANLEY: The reason I do not resist the order for costs being made against Mr Bagudu, is not because he is the settlor or anything of the sort, it is because it would be absurd to try to disentangle the costs of that application to which he was actually a party from the costs of that application to which he was not. The remaining issue is permission to appeal. I do not ask for permission to appeal in relation to the discretion decision about variation of the injunction. I do ask for permission to appeal in relation to a disclosure matter and the reason I do so is not to rehearse the argument who is right or wrong about it.
83. MRS JUSTICE ELISABETH LAING: Sure.
84. MR STANLEY: But it is the first time that any application of this sort is being brought before the court, and it is a point of some procedural importance for all parties in any application of this sort, which is ever made, to know where everyone stands in relation to the extent to which letters of request should be disclosed in procedures which may go on rather rapidly. Not least important, one might think, for requesting parties to know exactly where they were going to stand in relation to letters of request and so it is a point which raises issues of some novelty which are not by any means unique to this particular case. There is nothing special about this case which is going to mean that those sorts of issues do not arise in the future and the principles are therefore important principles. So I put the argument not so much to say well look my Lady has got it wrong. You have already heard me say that and you do not agree with me.
85. MRS JUSTICE ELISABETH LAING: Yes.
86. MR STANLEY: But more to say it is a point of some importance.
87. MRS JUSTICE ELISABETH LAING: Yes. I forget what the exact languages are, some other compelling reason. I can't remember.
88. MR STANLEY: You have to be satisfied in relation to -- to make it clear I am not saying that it is not an arguable point.
89. MRS JUSTICE ELISABETH LAING: No. I understand that.
90. MR STANLEY: On appeal there are two grounds. One is that it is arguable and the other is that it is very important. I am not saying it is unarguable but very important. I am saying it obviously arguable both ways.
91. MRS JUSTICE ELISABETH LAING: No. I got that.
92. MR STANLEY: But the reason why your Ladyship should give permission is not so much because your Ladyship sits there thinking I have just made a terrible mistake because I do not suppose you do but because --
93. MRS JUSTICE ELISABETH LAING: I think I should resign if I did.
94. MR STANLEY: Indeed.
95. MRS JUSTICE ELISABETH LAING: Could you just remind me what the precise language of the test is?
96. MR STANLEY: The relevant test would be in part 52.
97. MRS JUSTICE ELISABETH LAING: I do not (Inaudible).
98. MR STANLEY: And the appeal test --
99. MR HALL: 52.36.
100. MR STANLEY: That's right. So one has to see -- this is the first appeal and so we are not looking at second appeals so it is 52.36, "Permission to appeal may only be given where the court considers that an appeal would have a reasonable prospect of success or there is some other compelling reason why the appeal should be heard."
101. MRS JUSTICE ELISABETH LAING: So I may be right.
102. MR STANLEY: That is absolutely right and so what I was saying I do say that the appeal has a real prospect of success which means it is arguable as a summary judgment type of --
103. MRS JUSTICE ELISABETH LAING: Yes.
104. MR STANLEY: -- approach but I also say if it tips the balance towards granting permission rather than refusing permission, that the particular reason why this is not just a kind of run-of-the-mill case-management decision where your Ladyship has exercised her discretion that there are points of principle.
105. MRS JUSTICE ELISABETH LAING: Yes. I have the point. So I think you have the note about costs. What about permission to appeal?
106. MR HALL: Well on the compelling reason why the appeal should be heard, where that is relied upon, in my submission that is really a matter for the Court of Appeal because really the court itself can say whether or not it is of wider importance, but it really, in my submission, turns on the first question whether the appeal would have a real prospect of success. I am going to genuinely submit that that has not been made out and actually what this case turned upon was analysis of the facts applying some reasonably straightforward principles and that is evident from the fact that your Ladyship did not feel necessary in fact to go into the intricacies of the case law. So, in my submission, this is not a suitable case for permission.
107. MRS JUSTICE ELISABETH LAING: Do you want to say anything in reply?
108. MR STANLEY: No.
109. MRS JUSTICE ELISABETH LAING: I think I am going to refuse permission. I think Mr Hall is right. I see on one analysis it might be said to raise an important point, but I think in the analysis I have adopted it does not. It just involves (Inaudible)a factual question about whether you need disclosure and I do not think you do.
110. MR STANLEY: In that case that is all I had. Thank you very much. I am sorry we overran.
111. MRS JUSTICE ELISABETH LAING: That is alright. If you do want to go to the Court of Appeal, do you want an expedited transcript?
112. MR STANLEY: We probably will need one or least since your Lordship gave judgment orally, we will need at least the transcript of the judgment.
113. MRS JUSTICE ELISABETH LAING: Yes, you will. If you want me to order an expedited transcript I will.
114. MR STANLEY: Can I ask you to do that?
115. MRS JUSTICE ELISABETH LAING: Yes. So if you can draw up between you an order that reflects everything. Thank you very much, both of you.