England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 July 2017

1. LORD JUSTICE GROSS: We are grateful to Mr Ramsden QC and Mr Stewart QC. We will give fuller reasons at the conclusion of a stage two hearing, but we set out in the briefest summary our conclusions for today so the parties know where they are.
2. We decline to recuse ourselves, and see no reason or basis for doing so.
3. We are satisfied that it is fair to proceed on a narrow basis, focusing on paragraphs 50 to 59 of our earlier judgment. We are very doubtful of Mr Stewart's proposition that other parts of the judgment could be reopened generally, but we do not rest our decision on that. We are entirely satisfied that the rest of the judgment is in truth irrelevant to the only allegation of wasted costs advanced in this matter. Let it be assumed for example that, as Mr Stewart would contend, the judgment was wrong on a host of other matters; it has no conceivable bearing on the introduction of the new allegations of fraud at the hearing before us. We are therefore, again, amply satisfied that it is fair both to Mr Jones and indeed to all parties that the matter proceeds on a narrow basis.
4. In those circumstances there is no basis whatever for obtaining a transcript or introducing it into the hearing. To set any concerns at rest, if Mr Jones or for that matter Mr Ramsden for the interested parties wants to tell us of some incidental item that was said to us at the hearing, we are confident that we will not baulk at being told that. We have specifically in mind the point Mr Stewart adverted to, that Mr Jones had instructions at the hearing before us but did not have them before. If he wants to tell us that at the hearing, that is a matter for him. If Mr Jones assures us of that, we are likely to receive it and indeed to approach it on that sort of assumption. We cannot give an open-ended undertaking in that regard, but we cannot see that there are any more than perhaps one or two incidental points such as that which might arise. The essence of this application turns on the new allegations and the passages in the judgment to which we have already referred.
5. We are persuaded that, paraphrasing the test, there is enough material that the application is likely to succeed if that material is untested or unchallenged, but only in the following respects:

a. There is enough to warrant the allegation of improper or unreasonable conduct. We express no conclusion as to how the matter will finally be resolved. That is simply a reflection of the stage one test, and we wish to be absolutely clear about that. There are or may be all sorts of arguments which could yet appear and which may persuade us to a different conclusion. All we are saying is that the stage one test, which is relatively informal, is satisfied.

b. We are equally satisfied with regard to the costs which flow from it that the interested parties satisfy the stage one test in respect of the instruction of Mr Fenwick QC.

c. We are satisfied in that regard as to the introduction of allegations of fraud, of which we regard the reference to the without prejudice material as forming part. We do not see any future for the allegation of introducing without prejudice materials as having some discrete or independent existence apart from the allegation that unfounded allegations of fraud were introduced.

d. We should make it plain that we take a different view of the other allegations of costs being increased. We have had several months for material to be produced. We have nothing more than the most generalised assertions. We do not accept that the stage one test is satisfied. To make it absolutely plain, stage two would be about the costs relating to the instruction of Mr Fenwick, not more generalised arguments about additional costs. The rather broad or generalised suggestions in that regard either seem to us to raise matters which will not carry significant financial weight and so would be disproportionate, or are altogether too general to now warrant yet more time before the matter is investigated by a costs draftsman, with yet further costs for all concerned. Stage two - Mr Fenwick will forgive me putting it that way - is about Fenwick, in terms of costs.

6. On the basis we have outlined, the matter is proportionate. We make it plain to all parties we approach this jurisdiction with no relish. The parties can exercise their own good sense in that regard, but so far as the test for stage one is concerned it passes with regard to Mr Fenwick QC and his instruction, and thereafter we can only express the hope that good sense will prevail. But there it is.
7. The full reasons we will deal with in stage two, but now we need to turn to directions, including a possible amendment of the application to reflect these points. We are always very loath to be a drafting committee. On the other hand, I am even more loath to leave the parties in this case to their own devices to agree something in our absence.
8. MR RAMSDEN: My Lord, the paragraphs you have identified --
9. LORD JUSTICE GROSS: I just hope, Mr Ramsden and Mr Stewart, that the decision is clear.
10. MR STEWART: My Lord, there is one point I do want to ask expressly about before we move on.
11. LORD JUSTICE GROSS: Go on.
12. MR STEWART: My Lord, it is this: it is whether your Lordships are precluding me from putting forward evidence and arguing at stage two on what I referred to as the wider basis. In other words, seeking to persuade you that it is relevant, when considering the position of Mr Jones, the wider considerations?
13. LORD JUSTICE GROSS: Just one moment. I will make sure we are in agreement.
14. Yes, we have precluded you.
15. MR STEWART: I am grateful.
16. LORD JUSTICE GROSS: Just to be clear.
17. MR STEWART: Yes, I am sorry, I wanted to be clear.
18. LORD JUSTICE GROSS: I thought it was clear.
19. MR STEWART: Well, my Lord --
20. LORD JUSTICE GROSS: Anyway, now it is. And the reason, I have already given it, so I am not going to expand and we will --
21. MR STEWART: No, no, I am not asking your Lordship to expand.
22. LORD JUSTICE GROSS: We regard it as irrelevant, even on the most favourable view, as to the many errors you suggest we made.
23. MR RAMSDEN: My Lord, the allegations which are identified in the relevant paragraphs of the judgment are that the bill of costs was inflated on the premise which is analysed in my Lords' judgment.
24. LORD JUSTICE GROSS: It is 50 to 59 of the judgment.
25. MR RAMSDEN: It is, and specifically the justifications which were proffered, which were analysed in paragraphs 53 to 55 onwards.
26. LORD JUSTICE GROSS: Well, it is 50 to 59. That is what this is about.
27. MR RAMSDEN: My Lord, that is certainly what we focused on, and no more.
28. LORD JUSTICE GROSS: This is not going to be the occasion for a re-run of this litigation. Now, what you may want to do, what we probably require you to do, in box 3, paragraph 1, we think you should amend it to make it clear that the wrongfully disclosing privileged material forms a part of the unfounded allegations of fraud. We are tempted to rise for five minutes or so to enable you to do it and then talk to Mr Stewart. I am very reluctant to leave you both to come back to us. That is the first thing. Then we need to make sure that the application is limited to the Fenwick costs.
29. MR RAMSDEN: Yes.
30. LORD JUSTICE GROSS: So you may want to put that in so there is no debate in the future. Then there is the question of your putting in the Fenwick evidence.
31. MR RAMSDEN: Yes.
32. LORD JUSTICE GROSS: What we have in mind - this applies to you both - we are conscious of where we are in the calendar. If we gave you, say, 35 days to put in any further materials on the Fenwick costs, that takes us to somewhere like 23 August or thereabouts. If we gave you, Mr Stewart, say, 35 days for Mr Jones to put in --
33. MR STEWART: Can I just check with him, my Lord?
34. LORD JUSTICE GROSS: Of course -- anything he wants to, that is, within the scope.
35. MR STEWART: Yes, I understand, my Lord. I have asked for clarification and I well understand it. I am not happy about it, but I understand it.
36. LORD JUSTICE GROSS: No, no, no. I am sorry about your happiness. I am very sorry about your happiness, but even so, there it is. Could you check that that works, time-wise?
37. MR STEWART: My Lord, we believe that is all right. Could we have liberty to apply? We will seek not to use it save in very good circumstances.
38. LORD JUSTICE GROSS: I am just thinking, 35 days, remember a lot of what Mr Jones might have to say that is of relevance does not hinge on the precise evidence put in as to proving Mr Fenwick was brought in in consequence of this.
39. MR STEWART: I agree.
40. LORD JUSTICE GROSS: So it ought to be possible, and we know you and Mr Jones will try.
41. MR STEWART: Yes, my Lord. We (Inaudible) that position. And I agree, my Lord, I am myself either in trial or away until very nearly the end of August.
42. LORD JUSTICE GROSS: Yes. Well, why do we not say, there is a last Friday in September which I think is 29th, from recollection. I think I may be right.
43. MR STEWART: It is, my Lord.
44. LORD JUSTICE GROSS: Good. So number one, Mr Ramsden is going to amend his application in a minute. Number two, he gets 35 days from today for putting in any material proving causation as to Mr Fenwick. Three, you get until 29th September for responding, as I say, within scope. Four, we then need directions as to skeletons and bundles. I do not know how you would both like to do it. Who should go first?
45. MR RAMSDEN: Well, my Lord, we are content, as we have at the first stage, to go first.
46. MR JUSTICE NICOL: The way in which the skeletons have developed, they are more of a conversation than an exchange, and that is more helpful for the court.
47. MR RAMSDEN: Yes.
48. LORD JUSTICE GROSS: So if you go first, and you have, say, 14 days after you get -- from 29 September?
49. MR RAMSDEN: Yes.
50. LORD JUSTICE GROSS: And then Mr Stewart is 14 days?
51. MR STEWART: My Lord, that should be more than adequate.
52. LORD JUSTICE GROSS: What we should then do is put in a direction, that is why I would not mind your doing it in the next few minutes, even in manuscript, then you can both agree it while we are still here and then send it to us. On the same day as Mr Stewart's skeleton comes back -- I think given the fairly generous timetable for skeletons, we need to make sure there is a bundle for the hearing, confined to matters relevant to the hearing and it is an agreed bundle. We will not be happy with, I could not get agreement so I have sent in a separate bundle. That has to stop. It has to be agreed.
53. MR RAMSDEN: (Inaudible)
54. LORD JUSTICE GROSS: Leaders will have to sort it out, if they cannot get it done any other way.
55. MR STEWART: Could we just simply include that the parties are to liaise and agree a bundle by a particular date?
56. LORD JUSTICE GROSS: Yes. There would be quite a lot to be said -- they probably do not need your skeleton to agree that, do they?
57. MR STEWART: I would not have thought so.
58. LORD JUSTICE GROSS: Well, why do we not say, if Mr Ramsden's skeleton is 13 October, which I think is two weeks after 29th --
59. MR RAMSDEN: Yes.
60. LORD JUSTICE GROSS: -- then on 20 October the parties to agree a bundle. Twenty-seventh October, Mr Stewart's skeleton. On 3 November, agreed bundle of authorities. We may have the only relevant ones already, so that should not be difficult. The hearing to be fixed not before 15 November, first available -- I do not want to say simply convenient date and then discover that you, Mr Stewart, you, Mr Ramsden are unavailable until 2020. But the first --
61. MR STEWART: Well, if your Lordship were to give a direction that it be fixed before the end of the Michaelmas term?
62. LORD JUSTICE GROSS: I am always a bit wary in case that impacts upon listing in a way that is unfortunate. To be fixed if possible before the --
63. MR STEWART: I am simply seeking to avoid the consequence of one or other of us not being available.
64. LORD JUSTICE GROSS: Yes. To be fixed, if listing can accommodate it, before the end of the Michaelmas term but not before 15 November. Something along those lines? We very much hope that that will fit in with your diaries if you are already (Inaudible).
65. MR STEWART: My Lord, sorry, the time estimate?
66. LORD JUSTICE GROSS: Half day.
67. MR STEWART: Including judgment or excluding it?
68. LORD JUSTICE GROSS: Excluding judgment. Very good. Any other directions?
69. MR STEWART: Well, my Lord --
70. LORD JUSTICE GROSS: Costs of today reserved.
71. MR STEWART: I think, if I may respectfully say so, in some form or other the order from today ought to reflect the fact that I am precluded from putting in evidence on the broader basis because -- well, for obvious reasons.
72. LORD JUSTICE GROSS: Well, you --
73. MR STEWART: It seems to me it is that order which in due course I might be wanting to complain about, and it ought to be -- the jurisprudence is that one should not ordinarily seek to appeal stage one orders save in exceptional circumstances. So I think I would also want to ask for an extension of time to appeal against that order, because it does seem to me it is final on this application until after the determination of stage two proceedings, to avoid me having to go off about something because I make no bones about it, I do complain about that for reasons which I have put forward to your Lordship.
74. LORD JUSTICE GROSS: Yes. Well, you will no doubt record the fact that we will give full reasons after stage two.
75. MR STEWART: Of course I will record that, but I am simply being --
76. MR JUSTICE NICOL: I think you are asking for an extension of time if it is necessary to appeal the order that we are making today until the normal period for appealing the stage two order, if one gets to that --
77. MR STEWART: Exactly.
78. LORD JUSTICE GROSS: Yes, we are going to have -- So what you do not want to be is shut out, because you are having to appeal --
79. MR STEWART: Exactly, I do not want to be shut out.
80. MR JUSTICE NICOL: That seems very reasonable.
81. LORD JUSTICE GROSS: No, of course, and if you can draft a non-tendentious set of words between you, it should just be possible, as to the effect of our order. If you like, you can express it at the stage two hearing, to proceed on a narrow basis, which will be understood between us, precluding wider matters and re-opening the judgment, and then you can also reflect Fenwick, but nothing else.
82. MR RAMSDEN: My Lord, for what it is worth we would agree that is an entirely sensible way of dealing with any possible judgment.
83. LORD JUSTICE GROSS: Good.
84. MR RAMSDEN: My Lord, looking at our box 3, I think the alterations I need to make really ought to be uncontentious and simple, but I might just simply discuss it with Mr Stewart. But I do not think it is going to necessitate my Lords coming back into court. They are simply changes --
85. LORD JUSTICE GROSS: Do I dare, in this case, leave you both to agree it overnight?
86. MR STEWART: Can we do this?
87. LORD JUSTICE GROSS: I am not being facetious.
88. MR STEWART: If we could send a message to your clerks, where we simply agree, try and get something drafted between my learned friend and myself now in handwriting, and then we will get it typed up. I would have thought we should be able to manage that, and if there is a difficulty --
89. LORD JUSTICE GROSS: I think if there is a difficulty I would like to know in the next quarter of an hour. Otherwise if you agree something, both sign it and send it to me tomorrow morning, I will sign it.
90. MR STEWART: My Lord, we will put it, probably not in manuscript.
91. LORD JUSTICE GROSS: No, no, not in manuscript, typed up. Is there anything else?
92. MR RAMSDEN: My Lord, no, thank you.
93. LORD JUSTICE GROSS: If we have not heard from you by 4.15 pm We shall assume that at least in terms of drafting an order, that has been done by agreement. Anything else?
94. MR STEWART: No, thank you.
95. LORD JUSTICE GROSS: Well, thank you both for your assistance.