- MR JUSTICE NEUBERGER:-This is an application by the National Trust for Places of Historical Interest or Natural Beauty, "the National Trust", to be added as a party to an application brought by six individuals,-"the plaintiffs", who are representatives of the Devon and Somerset Stag Hounds and the Quantock Stag Hounds, to bring proceedings against the National Trust, pursuant to RSC Order 108 rule 3. If I accede to that application, the National Trust further applies for an adjournment to enable it to put in evidence.-The plaintiffs do not oppose the National Trust being joined as a defendant, but they do oppose the application for an adjournment.
- The background facts are these, and it is right to say that I take them largely from the helpful skeleton argument provided on behalf of the plaintiffs by Mr John Brisby, Queen's Counsel and Mr Robert Miles.
- The hunts to which I have referred have hunted stags over land in the West Country for many generations and substantial portions of their hunting country was given to the National Trust by various donors.-Until 1997, the National Trust permitted the hunts to hunt over its land.-It is the plaintiffs' case that assurances had been given that hunting would be allowed to continue over that land until such time as hunting is banned by Parliament.-On 10th April 1997, however, the Council of the National Trust -- which is the National Trust's governing body and is equivalent to the trustees of a non-statutory trust -- took a decision to ban hunting of deer over its land with immediate effect.
- Having unsuccessfully applied for leave to issue proceedings for judicial review of that decision ("the April decision"), the plaintiffs then took the appropriate course, by making an application to the Charity Commissioners, pursuant to section 33 of the Charities Act 1993, for leave to challenge that decision.-Within seven days, the Commissioners gave consent and the plaintiffs issued an originating summons challenging the April decision.
- In August 1997, following a hearing of about three days, Mr Justice Robert Walker refused an interlocutory injunction sought by the plaintiffs to allow hunting to continue during the 1997/1998 season, refused an application by the National Trust to strike out the proceedings and, while not making any order to that effect, indicated, in the light of certain matters which he dealt with in a full and clear judgment, that there was a "serious error of judgment" by the chairman and other officials of the National Trust in reaching the April decision in the way that they did and that they ought to reconsider it.-The Council did so reconsider on 2nd October 1997, and reached a decision ("the October decision") confirming the April decision.
- The plaintiffs' case is that the October decision was vitiated, just as much as the April decision, by a failure on the part of the Council to act fairly.-They identify three points which, as this is an interlocutory application, I will merely summarise. The first is-"concerns about the terms of the gift of a large estate by Sir Richard Acland". The point is that Sir Richard Acland, on the plaintiffs' case, had made it clear in legally binding form that stag hunting was to continue on his estate, and that was a condition or term of his gift, which was overridden by the April and October decision, and that the Council at the October meeting had been misled about the terms of the gift or at any rate had not been fully informed of it.
- Secondly, the plaintiffs say that the Council had not been informed of the National Park Authority's view, which had been given in writing and which was, on the plaintiffs' case, substantially favourable to hunting.
- The third complaint is that a scientific paper, which was said to indicate that a significant amount of distress was caused to deer in the process of hunting, was fundamentally flawed and questionable, and that this was not drawn to the attention of the Council.
- I revert to the proceedings which had been issued and which had been before Mr Justice Robert Walker on an interlocutory basis.-The plaintiffs thereafter sought specific discovery of documents, which was met by an application by the National Trust to strike out the whole proceedings.-The latter application came from before Mr Justice Ferris, who gave judgment on 1st April 1998.-He indicated in his judgment that he accepted the argument of the National Trust to the extent that, unless consent was obtained by the plaintiffs under section 33 of the 1993 Act to challenge the October decision, the existing proceedings challenging the April decision would serve no useful purpose and should be struck out.-He declined to consider whether to give leave to the plaintiffs to challenge the October decision on the basis that he had no jurisdiction to do so until an application had been made to the Charity Commissioners to do so and they had refused it.
- Accordingly, on 6th April 1998 the plaintiffs applied to the Charity Commissioners for leave to challenge the October decision.-After the Charity Commissioners had indicated that they were minded to refuse this application, there was a meeting where oral submissions were made on behalf of the plaintiffs to the Charity Commissioners as to why leave should be given.-It appears that there were then written communications between the Charity Commissioners and the National Trust. This eventually resulted in the Charity Commissioners giving their decision, a refusal, in a full letter dated 19th October 1998 and written to the plaintiffs' solicitors.
- That is not the end of the road for the plaintiffs because under section 33 subsection 5 of the 1993 Act they can seek leave of the court to challenge the October decision.-This is what they now do.-This application for such leave came before Mr Justice Pumfrey on 28th August 1998.-He ordered that the matter should be stood over for further argument and also directed that notice of the application should be given to the Charity Commissioners with a view to their attendance by counsel.
- The matter now comes before me today.-I have already indicated the identity of the plaintiffs' representatives.-The National Trust appear by Mr Michael Briggs Queen's Counsel and Mr Timothy Evans, and the Charity Commissioners are represented by Mr Guy Newey.
- The application is made pursuant to order 108 and the relevant provisions of order 108 are to be found in rules 3(1),(2),(4),(5),(6) and (7). It seems clear from those rules that the procedure envisaged is that such an application is normally determined on an ex parte basis and frequently only on the basis of a written application, but that in an appropriate case the court can decide to deal with the application at a hearing under subrule 6 and, to my mind, if the court so decides then it is up to the court to determine the appropriate procedure.
- In common with Mr Justice Robert Walker (see pages 29G to 34G of the transcript of his judgment) it seems to me that considerable assistance is to be gained from the approach of the court on the judicial review applications.-In order to obtain leave to bring judicial review proceedings, prima facie the applicant has to apply ex parte.-As is explained in the current edition of de Smith at paragraph 15-016, the application for leave can then be ordered to be heard inter partes.-Note 44 to that paragraph is illuminating:
"The practice of having a leave application on notice has received judicial recognition...
Lord Donaldson, Master of the Rolls, said that:
"Where a judge was uncertain whether or not to grant leave, it was proper and reasonable for the application to be adjourned in order that it may be further heard inter partes but 'at such a hearing it is not for the respondent to deploy his full case, but simply to put forward if he can some totally knock-out point which makes it clear that there is no basis for the application at all'."
The note continues:
"However the practice has to be followed with caution as it can result with the respondent [I add: also the applicant] being saddled with the expense and inconvenience of two sets of proceedings."
- It seems to me that that note provides helpful guidance.-In an appropriate case a respondent should be present and have an opportunity to argue why leave should not be given, but in no circumstances (save, perhaps, exceptional ones) should the leave application be treated as an opportunity for a dress rehearsal of the final hearing.-Appreciating that, Mr Briggs seeks to limit his application to what -- picking up the expression of Lord Donaldson -- he contends will be a knock-out point.-His contention is that the three complaints sought to be made by the plaintiffs were specifically considered by the Council of the National Trust at a meeting on 30th July 1998, and that none of those three points (together with a fourth point, which I do not have to deal with at the moment) caused the Council to change the October decision.
- In those circumstances Mr Briggs argues that the plaintiffs' present application should not be granted because it would involve reviewing the October decision, which is as pointless as reviewing the April decision, as the October decision, whether or not worthy of criticism and vitiated by the criticism, has been overtaken by a further decision where all points said to give rise to criticism or potential vitiation of the October decision have been taken into account, and the decision remains the same.-Mr Briggs' application today is to put in evidence so that that submission can be made good.-The contention that the National Trust should have the opportunity to put in this evidence and to be heard on this alleged knock-out blow is supported by Mr Newey on behalf of the Charity Commissioners.
- I turn then to consider how to exercise my jurisdiction to grant or refuse the application for an adjournment.-First, it seems to me that, on the face of it, Mr Briggs' point may well be a potential knock-out blow, at least to an extent (i.e. it could wholly defeat the present application or it could cut down the issues or aspects of the issues on which the court should consider giving leave).-It is the plaintiffs' case, as I have mentioned, that because the April and October meetings failed to consider the three points properly or at all, each decision is worthy of criticism and should be vitiated and the whole issue should be reconsidered.-The evidence which the National Trust seeks to put in may well establish that the Council was fully, accurately and fairly informed of all these three points and that therefore the decision reached on 30th July 1998 cannot be attacked in the way in which the plaintiffs may be able to seek to attack the April and/or October decisions.
- However, it may be that there would still be something left in the plaintiffs' armoury.-In particular, even if it can be shown that the Council had on 30th July 1998 all relevant evidence and advice, in relation to Sir Richard Acland's desires and intentions, it may still be open to the plaintiffs to run the argument that no reasonable body of trustees in the position of the Council could in all the circumstances have decided to ban stag hunting on the land which was acquired from Sir Richard.-Even assuming that the plaintiffs could still make such a type of criticism on the first point, it seems to me that the issues on that point may well be substantially narrowed by the proposed further evidence. In relation to the other two points, it may be that, subject to one argument to which I must turn, there will be nothing left of the plaintiffs' case.
- These proceedings are likely, if they go ahead, to be fairly expensive and fairly time consuming.-There are very strong feelings involved and, even assuming everything in the plaintiffs' favour, there is liable to be much evidence and much argument and that has inevitable consequences in terms of cost and time.-It seems to me that if there is a real possibility of the evidence put in by the National Trust merely cutting down the ambit of the issues, then the court should be slow to shut it out.
- Secondly, it seems to me that, as Mr Newey says, it is not desirable for this court to consider the question of whether or not to grant leave under order 108 rule 3 on the basis of less evidence than was available to, and considered by, the Charity Commissioners.-It is fair to mention, as Mr Brisby says, that the existence of 30th July 1998 meeting and its general ambit and effect are summarised in the last page of the letter of the Charity Commissioners of 19th August 1998.-However, the Charity Commissioners clearly had much more in the way of documents than is currently available to the court.-All the court has is that last page of the letter, plus what Mr Briggs had told me.
- This court is not acting as an appellant court against the decision of the Charity Commissioners; it is exercising its own jurisdiction.-Nevertheless, it seems to me sensible that the court has all the information that was available to the Charity Commissioners if that is possible.
- A third point, which to an extent cuts both ways, is that is that there is a risk that this procedure could go on for ever.-Each time that there is a meeting whereby the Council decides to continue its ban, it is challenged by the plaintiffs to the Charity Commissioners; each time the grounds of challenge are communicated to the Council; each time those criticisms are put before the Council; and each time the Council renews its decision.-Then the circle is gone round again.-It seems to me that at some point that circle, which is a vicious one, has to be cut and, as to that, there may be two possible results.
- The first is that canvassed by Mr Newey, namely that the court may conclude that it is a waste of time and money to let proceedings such as these, which are internal charity proceedings not external proceedings, should simply be stopped because it is clear that whatever happens, the Council have reached a conclusion from which they will not budge.
- The alternative possibility is that the court concludes that those responsible for the decision-making process of the charity, or those actually making the decisions, have on a particular topic become so irrational or so unreasonable that while any decision they reach is predictable, they have lost any ability to reach a proper decision based on proper consideration of the evidence.-That is a very strong conclusion to reach and I should not be taken, from anything I say today, as indicating that that may be the position in the instant case.
- However, it may be that, as a result of the further evidence which the National Trust wish to put in, the plaintiffs will have to consider whether that is a point they wish to take. It may be that either now or sometime in the future, they will either have to accept that the position is as suggested by Mr Newey and give up, or they may decide that they should and properly can run an argument along the lines I have just indicated, in which case they may have to amend their proceedings to seek to invoke the powers of the court under, I think, section 16 of the 1993 Act in relation to a scheme.-It is right to say that the possibility of such a scheme is touched on in the current proceedings.
- This third point, has, as I say, caused me some concern which is why I am dealing with it at this stage. However, it does also seem to me to be a further reason for granting an adjournment to enable the National Trust to put forward its alleged knock-out blow:-if the plaintiffs wish to proceed under section 16 (if that is the right provision) they should consider getting their properly formulated now.
- Fourthly, it appears to me that one has primarily to take into account the interests of the charity. These proceedings are filter proceedings, being an application for leave.-They are, as I have mentioned, internal charity proceedings, and while I think Mr Newey is right in saying that it is too much to say that the sole purpose of the application for leave being normally ex parte is to protect the charity from having to incur cost in appearing in hopeless applications for leave, I think Mr Briggs has a point that that is one of the principal reasons for making such applications ex parte.-In those circumstances the court should not be too resistant in an appropriate case (and I think this is one) to permit the charity to be represented at the leave stage.-The fact that this is such an appropriate case is reflected by Mr Brisby's acceptance (correct in my view) that the National Trust should be represented.-If it is to be represented, then if it has a genuine case for saying that it may be have a complete or partial knock-out blow, then it should be given the opportunity to make that good in an appropriate way, namely with such evidence as it reasonably wants to put before the court, at least when there are strong reasons the other way.
- The factors the other way are these.-The plaintiffs are individuals who feel, rightly or wrongly, that they are being unfairly treated by the National Trust, playing a procedural game to wear them down in terms of morale and money, and that this is the latest stage of the game.-The plaintiffs did not not know in terms of the meeting of 30th July and what it decided until they heard about it today.-They are faced with an application for an adjournment which involves them in further delay and further cost, in circumstances where they say that the National Trust could have acted more quickly.
- So far as prejudice generally is concerned, a delay of a few weeks, which I think is what would be involved here, is of itself no great prejudice.-I have already summarised the history and a delay of some weeks or even a couple of months does not seem to me to be of any great significance of itself.-However, I do consider that there is something in the point that any delay, involving a further hearing and further evidence will involve the plaintiffs in increased costs.-I also consider that, without lengthening an already over-lengthy judgment with reasons, there is force in the argument that the National Trust could have acted rather more promptly so as to have got their evidence before the court today.-However, I think that there has been fencing on both sides.-The relationship between the two parties is not as friendly, as in a perfect world, one might have hoped; but, bearing in mind the entrenched positions and the strong feelings of principle involved, it is perhaps not surprising.
- In summary, it seems to me that (a) each party has not been as constructive as one might have hoped, (b) there is some force in the argument that the National Trust could and should have acted more quickly given the fact that the evidence it wishes to put forward is not within a very large compass, (c) there is no great prejudice from a comparatively short delay and (d), most importantly, even assuming the blackest possible picture of the National Trust's behaviour in relation to coming up late with its case and seeking an adjournment, it would seem wholly disproportionate, even bearing in mind the prejudice to the plaintiffs, to say that the National Trust should thereby be disentitled from putting forward evidence, particularly relating to its alleged knock-out blow. If, as a result, it turns out that the knock-out blow either avoids the need for any proceedings in the sense that leave is refused, or merely cuts down the ambit of the issues between the parties, it will have served a useful purpose.
- These are charity proceedings and it seems to me that there is force in Mr Briggs' contention that any delay by his clients is in any event not perhaps as strong an argument for refusing an adjournment as it might be if these were straightforward commercial proceedings between two arm's-length parties.-However, I think it is right to say that, even if this was arm's-length proceedings between two commercial parties, the degree of delay and the prejudice caused by the delay is not such as to persuade me that the application for leave should go ahead now given that there is a real possibility of a knock-out blow being established in respect of the whole or part of the points which the plaintiffs wish to put before the court.
- Mr Briggs suggests standing the matter over for a week. I suspect that Mr Brisby will want a little time (a) to consider the evidence put in by the National Trust, (b) to consider his position generally with regard to putting in further evidence in reply and (c) to reconsider the nature of the relief sought.
- In all the circumstances what I propose to do is to grant the adjournment for a week or such longer period as Mr Brisby wants, and then for it to come back for consideration on that basis.
MR BRISBY:-My Lord, may I suggest the following directions?-The matter should be stood over to come back before your Lordship on the first available date not before two weeks this coming Monday, a period of about 17 days.-My Lord, it is clearly sensible your Lordship should retain it.-We hoped to have Mr Justice Pumfrey, because he had read the bundle.-We have had your Lordship, your Lordship has now read the bundle, clearly it is sensible. I can give you directions, your Lordship should retain it because otherwise there will be further costs for my clients in having to explain the matter, but further wasted courts time in a judge having to read what is already a reasonably substantial bundle.
MR JUSTICE NEUBERGER:-I will hear Mr Briggs and Mr Newey on that.-The only thing I should say - I should say two things about that:-one, personally I am perfectly happy for it to come back to me if that is what is wanted; but secondly I am doing motions and companies during part of the rest of this term.-If a suitable date which suits all parties and the clerk of the list can be found -- and particularly as well if I am doing companies -- there should be no problem.
MR BRISBY:-My Lord, clearly it ought to be heard this term, because then one may have lost sight of it.-These are proceedings where there have already been speedy trial directions and --
MR JUSTICE NEUBERGER:-You mentioned that and I did not. Yes, Mr Justice Robert Walker mentioned it.
MR BRISBY:-Yes, it was not to be in a sense; but my Lord, if your Lordship can hear it and it can be accommodated this term, my Lord, that would be, I am sure, satisfactory from all parties' points of view but obviously we will have to hear Mr Briggs and Mr Newey on that.
My Lord, in relation to further directions, if my learned friend's evidence comes in in seven days time, my Lord, we would like seven days to reply.-My Lord, it is, I suppose, conceivably possible that we will want to drop the matter having seen what is said.
MR JUSTICE NEUBERGER:-I would have thought -- Mr Briggs, I said seven days in my judgment.-That said, Mr Briggs said I should stand it over for seven days.-I think if I was to push him, he might agree to provide his evidence in less than seven days.-He did say stand it over for seven days, but again I do not want to put it --
MR BRIGGS:-We will obviously use our best efforts to get it in as quick as we possibly can.-My Lord, I simply I do not know, because I have not been through all the underlying material and had any real opportunity to take detailed instructions, whether there is anything we would want to add beyond what appears from the relatively small number of documents.-My Lord, if we can put it seven days but best endeavours to do it sooner if possible, I am very happy with that and, my Lord, I entirely share my learned friend's view that we ought to get this on this term and before a judge who has some familiarity with the matter.
My Lord, it did occur to me that Mr Justice Ferris also does, and if he could do a date which your Lordship cannot do, it is just a question of common sense and practical management to get it on before a judge before whom it can be economically dealt with.
MR JUSTICE NEUBERGER:-It seems to me that the judges who have heard it before and have considered it are Mr Justice Ferris, Mr Justice Pumfrey and myself.-I will tell -- if you are happy with one of those preferably, because you will have a judge who has looked at it before, I will tell the clerk of the list.
MR BRIGGS:-Yes.
MR BRISBY:-My Lord, I would suggest it should clearly be possibly either Mr Justice Pumfrey or yourself because, my Lord, Mr Justice Ferris never read the papers in relation to this application for leave.-He simply heard the earlier strike-out which is ancient history really.
MR JUSTICE NEUBERGER:-I will explain to the clerk of the list.-I suspect if you had to choose between having your judge who knows about it or having it this term, you would rather have it this term; that is the more important thing.
MR BRISBY:-Yes.
MR JUSTICE NEUBERGER:-I will tell the clerk of the list (a) it has to be heard this term, unless some wholly unexpected event happens, but it has to be heard this term and ideally it should be heard -- well, I will indicate what you have said.
MR BRISBY:-Yes, my Lord.-Clearly the sensible order of preference is your Lordship because it is freshest in your Lordship's mind, followed by Mr Justice Pumfrey because he may remember something.-He read the papers in considerable detail but in August.-Mr Justice Ferris knows about the background but, of course, has not read any of the papers relating to the latest application.
MR JUSTICE NEUBERGER:-I will leave the clerk of the list to act as Paris between the three of us.
MR BRISBY:-My Lord, we would then have seven days to respond.
MR JUSTICE NEUBERGER:-Yes.
MR BRISBY:-My Lord, within that seven days, if we decide to go ahead we will write for obvious reasons to the Charity Commissioners requesting leave to challenge the July decision.-My Lord, we would ask your Lordship to make a direction that they should respond within 48 hours to such a letter.-My Lord, they have already relied on the July decision in order to turn down our application.
MR JUSTICE NEUBERGER:-I would have thought that probably, subject to Mr Newey in an exceptional case, I will have jurisdiction to do that; but assuming in your favour I do, I would require the most -- I would certainly require a lot of persuading that I should do that. I would prefer to leave it on the basis that the Charity Commissioners have heard what you have to say through Mr Newey.
MR BRISBY:-Last time it took five months.-What I am very concerned of is we come back in front of your Lordship, or indeed Mr Justice Ferris, and then I am Ferrised on the basis that it is a new application to challenge the July decision and I have not got the leave of the Charity Commissioners.-My Lord, it is pointless even considering further directions unless I can be sure that the matter will be heard effectively when it comes back to court.
My Lord, in a sense it does not matter whether it is heard this term, it had better be heard in two years' time provided we have a decision from the Charity Commission.-My Lord, it simply cannot be right and I very much hope that Miss (inaudible) from the Charity Commission is here, that they have made their decision into a -
MR JUSTICE NEUBERGER:-I see the force of your point but I do not think I can possibly order, as it were, ex parte - it is the first that Mr Newey has heard of it - the Charity Commission to reach a decision without you even having made the application.-They do not even know what they are being asked to read.-There are now piles of papers.-I see your point.-They have considered it and it has formed part of their reasoning and it may be they will be able to give a very quick answer, but -
MR BRISBY:-My Lord, they are before the court, in my respectful submission.
MR JUSTICE NEUBERGER:-Perhaps I should hear Mr Newey's side.
MR NEWEY:-My Lord, the point I would draw to your Lordship's attention is we have considered the July meeting in the sense that material relating to that was put to the Commission and they have considered it.
MR JUSTICE NEUBERGER:-But you do not know what is going to be said about it?
MR NEWEY:-My Lord, no.-My Lord, on the face of it, that disposes of the three points.-Presumably, the plaintiffs on this hypothesis would be putting forward new complaints about that meeting and at this stage we simply do not know what those would be.-I follow entirely that it is extremely desirable that a decision be taken extremely quickly.-My Lord, I am reluctant to go beyond that without knowing what it would be that would be being said about the July meeting.
MR JUSTICE NEUBERGER:-The trouble is I am not even seized of anything to do with that in one sense.-All I would say is that the sooner the July meeting is the subject matter of an application -- the sooner that a challenge to the decision reached at the July meeting is the subject matter of an application to you, the sooner you can deal with it.-The sooner you deal with it the better, and if there is some reason to think that you are dragging your feet then Mr Brisby can make an application.-Whether I have jurisdiction to do that or not -- well, I do not ask you should address me on that.-I do have a general supervisory jurisdiction on charities but I am not sure I have one over the Charity Commission.
MR NEWEY:-I would not attempt to make submissions to your Lordship on the answer to that.-I follow entirely what your Lordship says and I know it will be taken into account by those instructing me.
MR JUSTICE NEUBERGER:-Mr Brisby, I think your point has got home to Mr Newey.-I understand it.-If there is a problem once you have made the application and you think I can help, by all means --
MR BRISBY:-My Lord, I am obliged to your Lordship.-Clearly my client is in a very worrying position.
MR JUSTICE NEUBERGER:-Any order I make can have -- when you agree an order you can include liberty to apply and if you can (a) persuade me that I have jurisdiction and (b) that liberty to apply encompasses and so on, I will do what I can to help.-But I think everyone in court can see the sense of what you are asking for in terms of having it all before the court, so we do not have the leap-frog game going on for ever.
MR BRISBY:-My Lord, the only other matter I would say in relation to directions and whether it can be dealt with by an undertaking from my learned friend Mr Briggs, or whether it is technically an application for discovery on my part is this: your Lordship has in part granted the adjournment because your Lordship felt it was wrong that you should second-guess the Charity Commissioners' decision in one sense on the basis of less material than they had had.-My suggestion is that the National Trust should be required to disclose the entirety of the communications that they have had with the Charity Commission and vice versa.
MR JUSTICE NEUBERGER:-What I would prefer, Mr Brisby, to do -- subject again to Mr Newey and Mr Briggs -- is to say in their evidence they should either tell the court that what they have disclosed with all the documents passing between them, or if it is not give, if they want to, some explanation as to why it is not.
MR BRISBY:-My Lord, I would be happy with that.
MR NEWEY:-May I make it quite clear, my Lord, so would we. It would be extraordinary if having made the submission your Lordship should be in a worse position than the Charity Commissioners.-We do not need your Lordship in a worse position than the Charity Commissioners and we would not expect much sympathy if we --
MR JUSTICE NEUBERGER:-It may be that there are one or two -- why I do not want to make the order is it may be there are one or two documents which, for some reason I cannot envisage, are not appropriate -- has to explain.-Yes.
MR BRISBY:-Just so that my learned friend is not taken by surprise, my Lord, I am not simply talking about submissions that were made to the Charity Commission by the National Trust after the oral hearing in June, I am talking also about the initial letter from Nabarro's which contained the unfortunate statement about there having been no evidence that a promise had been given to the Hunts with regard to the X4 National Trust statement.-Your Lordship has seen all of that in the affidavit of Mr Knight.-It was a matter we were told about by the Charity Commission and they read us but did not show us a passage from letter of Nabarro Nathanson's, and that is how we know about what was said there.-My Lord, we shall be commenting strongly if that document is not exhibited.
My Lord, I think that deals with everything in the imperfect position in which we see ourselves where we cannot guarantee that we will have any response from the Charity Commission within a reasonable amount of time; but, my Lord, the matters clearly will have to be left on this basis and we will have to hope that common sense will prevail between the parties.-All parties have taken the view that it is in their interests that this matter is disposed of one way or another as soon as possible.
MR JUSTICE NEUBERGER:-You will get details of the 30th July meeting from the National Trust within seven days. Will you need leave either from the National Trust or from me to rely upon those documents as founding the basis of an application to the Charity Commissioners for leave?-Have they been provided to you in the course of litigation?
MR BRISBY:-I am not sure because if they will be exhibited to an affidavit then documents voluntarily put forward, so I think that --
MR JUSTICE NEUBERGER:-I am just not sure that I have jurisdiction to.
MR NEWEY:-Your Lordship has jurisdiction to permit it, we will not oppose it.
MR JUSTICE NEUBERGER:-I did not think you would, I just thought that we might as well sort that out.-It may be an irrelevant point.-I may be worrying about nothing. If you need it, you have leave.
MR BRISBY:-I am much obliged.-My Lord, the only other thing I would say is in relation to the costs thrown away today.-My Lord, your Lordship has expressed --
MR JUSTICE NEUBERGER:-What I would like to do on that is to reserve.-I have not considered that aspect fully, I wanted to get rid of this this morning, if it can be called this morning.-It is going to come back to court.-I would rather consider it more fully then. I am quite sympathetic to you, but I am not certain at the moment --
MR BRISBY:-My Lord, that is obviously -- your Lordship having known the way it went today, that is obviously a feature which, if it is possible, it would be better if your Lordship could hear it rather than Mr Justice Pumfrey or Mr Justice Ferris.
MR JUSTICE NEUBERGER:-Part of the problem for the plaintiff, for the National Trust, is looking at it from their point of view that I can see an argument as to why they should be ordered to pay the costs, but they have had to put it all together in a hurry.-They may well feel that there are other things that they want to draw to my attention on the costs.-I am not saying I would be minded to order costs against them, I think it is difficult point on this but I would rather it was dealt with at a later stage when everyone has had an opportunity to consider it.-I will reserve the costs, then, if that is acceptable.-Thank you all very much.
(Court rise)
We hereby certify that the above is an accurate and complete record of the proceedings, or part thereof. Signed: SMITH BERNAL REPORTING LIMITED