Neutral Citation Number:  EWHC 3312 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Wednesday, 14th December 2005
B E F O R E:
MR JUSTICE LLOYD JONES
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THE QUEEN ON THE APPLICATION OF TAKELEY PARISH COUNCIL
STANSTED AIRPORT LIMITED
SECRETARY OF STATE FOR TRANSPORT
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Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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RICHARD GORDON QC & SARAH STEVENS (instructed by Messrs Richard Buxton 19b Victoria Street Cambridge CB1 1JP ) appeared on behalf of the CLAIMANTS
MR MICHAEL HUMPHRIES QC & MR HEREWARD PHILLPOT (instructed by Messrs CMS Cameron McKenna) appeared on behalf of the 1ST & 2ND DEFENDANT
MR MICHAEL FORDHAM (instructed by the Treasury Solicitor) appeared on behalf of the 3RD DEFENDANT
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J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE LLOYD JONES: In December of 2003, the Secretary of State published a White Paper entitled "The Future of Air Transport", which supported the proposal of the development of a second runway at Stansted Airport. The White Paper included a number of statements to the effect that the airport operator would need to put in place a scheme to address the problem of generalised blight, resulting from the runway proposal. Generalised blight, it is common ground, is fairly described in the White Paper as an effect on property values in the period before statutory protection becomes available. It is blight which affects property values for which no compensation is available under any statutory scheme. The White Paper contemplated a voluntary scheme.
2. The first defendant to this application, Stansted Airport Limited, is a wholly-owned subsidiary of the second defendant, BAA Plc. The first defendant proposed three voluntary schemes: a Home Valuation Guarantee Scheme, a Home Owner Support Scheme and a Special Cases Scheme. The first defendant went out to consultation on the Home Owner Support Scheme in February 2004 and, in September 2004, it published a document detailing the intended operation of the Home Owner Support Scheme. The compensation that should be payable under the Home Owner Support Scheme applies only to properties falling within a fixed noise contour.
3. The first claimant is a parish council whose area is in the immediate vicinity of the proposed new runway. Its area is intersected by the noise contour employed by the Home Owner Support Scheme. The second claimant is a local resident whose property falls outside the qualifying area for the Home Owner Support scheme. They seek permission to apply for Judicial Review. The essence of their complaint is that the Home Owner Support Scheme compensates some of the property owners affected by generalised blight but not all.
4. The claim, as originally constituted, was a claim against the first and second defendants only. It sought to quash both the Home Owner Support Scheme and the Special Cases Scheme. It advanced four legal grounds in support of that application. The first was a failure to have regard to Section 26(2A) of the Land Compensation Act 1973. The second was a failure to have regard to or satisfy material requirements of the White Paper. The third was failing to comply with the duty under Article 8 ECHR and Article 1 of the First Protocol ECHR. The fourth was a failure to comply with Article 14 ECHR.
5. That application was considered on paper by Sullivan J, who refused permission. In doing so, he made some detailed observations. He considered that the claimant's submission that the defendants in adopting the Home Owner Support scheme ("the scheme") were exercising a public function or were acting as a public body was arguable. However, he considered that the four grounds of challenge were not arguable.
"The statutory compensation code did not provide a remedy for 'generalised blight'. The White Paper did not, and could not, impose any legal obligation upon the Defendants to make good this deficiency. If the Defendants' voluntary scheme is said to be inadequate the Claimants' remedy is political (to urge the Interested party to ask Parliament to amend the Statutory Compensation Code), not legal. There is an inherent illogicality in litigation that seeks to compel the Defendants to adopt a different form of voluntary code."
As a result of the observations of Sullivan J, the claimants' case has not so much been reformulated as substantially reconstructed and there is an application before me for permission to amend.
6. The net effect of the proposed amendments can be summarised as follows. Ground 1 is abandoned. Ground 2 is substantially modified. Grounds 3 and 4 are abandoned as against the first and second defendants but are now pursued in a modified form against the Secretary of State, whom it is proposed to join as the third defendant.
7. I consider that the claimants' submission that the first and second defendants in adopting the scheme were exercising a public function or acting as public body is arguable. I turn therefore to the grounds of case advanced against the first and second defendants.
8. The way in which ground 2 is put has evolved. In its original form, the claimants maintained that the White Paper gave rise to some sort of legal obligation on the first and second defendants. Thus, originally, it was expressed in terms of a failure to bring forward a scheme which satisfied the material requirements of the White Paper. The claimant now accepts that the White Paper did not impose any legal requirement for the defendants to adopt a scheme to address generalised blight and this is reflected in the proposed amended grounds of claim. In particular, at various points the words "required" are deleted and replaced by words such as "envisaged". The claimants say that it is also reflected in the fact that they no longer seek to quash the scheme or to obtain any mandatory relief but merely seek declaratory relief. I shall return presently to the question of the relief sought.
9. The second formulation of the point was that the first and second defendants were in practice required to adopt a scheme which complied with the White Paper because that was necessary in order to obtain planning consent from the Government. We see this, for example, in paragraph 28 of the proposed amended grounds of claim:
"In order to obtain the Government's consent to the construction of a new runway, the Defendants were in practice obliged to adopt a compensation scheme which implemented the government's policy as set out in the White Paper."
10. The third way of putting the point is that the first and second defendants acted unlawfully in adopting the scheme because the scheme did not satisfy the intended purpose of implementing the Government's policy as stated in the White Paper. This is now put at the forefront of the claimants' case. I should observe that, so far as the second formulation is concerned, this encounters a number of difficulties. First, the White Paper makes it clear that the scheme is to be a voluntary scheme. Secondly, when the first and second defendants make their planning application that will have to be considered on its merits and in accordance with the applicable planning law and the development plan. There is no obligation to produce a scheme which conforms with the White Paper in order to obtain planning permission. Indeed, the claimants now accept that the White Paper does not impose any legal requirements on the first and second defendants in this regard. Given that, the suggestion that there was a requirement in practice does nothing to further the claimant's case and Mr Gordon QC accepted, in his reply, that he no longer relied on this formulation in support of his application for permission.
11. So the substance of the point is to be found in Mr Gordon's third formulation and it was on this that he concentrated his submission. He submitted that the fact that the first and second defendants were not acting under an obligation did not affect the power of the court to rule on the legality of the conduct. He submitted that where a public body in the exercise of its public functions bases its acts on the premise that it is giving effect to or acting in accordance with a defined policy the court is able to assess whether those public functions are consistent with its avowed intentions. In Mr Gordon's submission, once it is accepted that the first and second defendants are performing a public function, judicial review is available to ensure that they are exercising those functions in accordance with public law requirements of legality, rationality and fairness.
12. In this regard, he relied on a number of authorities. He referred to R v Criminal Compensation Board ex parte Cummins, a decision of Hutchison J on 17th January 1992. That decision merely applies the principle that, in cases where there is no obligation to give reasons, if a public body does give reasons it must do in a way which meets those requirements of adequacy which the law imposes in cases where a duty to give reasons exists. I have difficulty in seeing how this case can assist the claimants in the present case. He also relied on R v Secretary of State for the Home Department, ex parte Urmaza, a decision of Sedley J, as he then was, on 11th July 1996. This case concerned the meaning and application of a Home Office internal policy document on marriage and children. Mr Gordon relies on this as supporting two propositions: first, that the court will review public statements of policy which are not made out of legal compulsion and secondly that it is the court and not the decision-maker which determines the meaning of the policy. Both propositions seem to me to be uncontroversial. However, that case, Urmaza, was concerned with an internal policy of a public body. It is clear that, in general, such a policy should be applied consistently. In the present case, we are not concerned with the internal policy of a public body but the question of whether the first and second defendants can be taken to have acted unlawfully if they failed to fulfil the policy of the Secretary of State in the White Paper.
13. So, to my mind, these cases do not assist the claimants. Once it is accepted that there is no legal obligation to implement a particular policy, it is difficult to see how there can be a challenge to the legality of failing to do so. As Mr Humphries QC, for the first and second defendants, put it, the cases do not identify any obligation to give effect to the Secretary of State's policy in respect of generalised blight. I can see that there may be an obligation on the first and second defendants to have regard to the Secretary of State's policy, as stated in the White Paper, when considering what voluntary scheme to introduce. Indeed, Mr Humphries, for the first and second defendants, accepted that there is such an obligation. But it is accepted that the White Paper did not impose any greater legal obligation on the first and second defendants to implement the policy which it contains. I would accept that there are circumstances in which a public body, acting voluntarily, can be the subject of Judicial Review. However, as Mr Humphries put it, in each case the question will be: on what grounds?
14. In the present case, it is said that the scheme is unlawful because it does not satisfy the intended purpose of implementing the policy of the White Paper. The short answer to that, it seems to me, is that it was not required to do so. In the present case, it seems to me that there is no arguable ground for challenging the lawfulness of the scheme adopted by the first and second defendants on the basis that it failed to comply with the White Paper.
15. However, in his reply, Mr Gordon presented ground 2 on a yet further basis, based on concessions made by Mr Humphries in the course of his submissions. Mr Humphries conceded that a public body exercising public functions on a voluntary basis can be subject to a Judicial Review; that the first and second defendants, were, at the very least, obliged to have regard to the White Paper policy and that, in order to do so, they must have properly understood it. Mr Gordon says that it is clear, from the nature of the scheme which was produced by the first and second defendants that they clearly misunderstood the policy.
16. That leads me then to the question of whether the scheme, as proposed by the first and second defendants, does in fact depart from the policy evidenced by the White Paper. It is the submission of Mr Humphries, for the first and second defendants, that, in any event, the scheme adopted did conform to the policy of the Secretary of State as stated in the White Paper. In this regard, he relied upon the decision of the Court of Appeal in R v Derbyshire County Council, ex parte Woods  JPL 958. This was an appeal against a refusal of judicial review in respect of a decision granting planning permission. One of the arguments which was advanced was that the council had failed to take into account national policy as set out in a published document. Brooke LJ, in the Court of Appeal, observed as follows:
"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment  1PLR 81, per Nolan LJ at 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law."
Brooke LJ also referred to the judgment of Woolf J, as he then was, in Gransden (EC) v Secretary of State for the Environment  54 P&CR 86 and the judgment of Auld J, as he then was, in Northavon DC v Secretary of State for the Environment  JPL 761, where he observed at page 763:
"The test to be applied by the court was that it should only interfere where the decision-maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify."
In the circumstances of the present case, I consider that the first and second defendants do not need to rely on this passage so as to invoke one of two or more possible meanings. To my mind it is clear that the scheme devised by the first and second defendants does reflect the policy of the White Paper.
17. The White Paper itself deals with the voluntary schemes in respect of generalised blight in very general terms:
"11.41 The airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal (see paragraphs 12.13 to 12.17)."
"12.16 The prospect of airport development will in many cases have a wider impact on property values in the period before statutory protection is available. This is often referred to as 'generalised blight'. There is no statutory remedy for this, but we accept that people should have access to some form of redress, for example to help them relocate before the development takes place, if they need to do so. Arrangements are therefore being made for non-statutory schemes to be brought forward locally by the airport operators to deal with the problem of generalised blight where runways are supported by this White Paper or where land is safeguarded for future development. These schemes will complement the proposals for noise mitigation discussed in Chapter 3.
"12.17 Recent precedents for the use of non-statutory schemes of this kind, include, for example, those used in connection with the construction of the Channel Tunnel Rail Link. We look to operators to minimise the impact on local people, to consult on the details of their schemes, and to put them in place quickly. These schemes will not affect people's statutory rights."
18. Mr Gordon contends that the White Paper contemplates a voluntary scheme which relieves all cases of generalised blight. To my mind, the relevant passages from the White Paper quoted above do not support this submission. However, in this regard, he relies on a letter from the Under Secretary of State, Mr Tony McNulty, to Mr Brian Ross of Stop Stansted Expansion, dated 30th April 2004. That letter states:
"I understand your concerns about BAA's proposals providing appropriate compensation for all those affected by generalised blight at Stansted Airport. As you rightly mention in your report to BAA, there is no statutory entitlement to compensation for generalised blight (which falls outside the Land Compensation Act 1973) but in order to address this, paragraph 11.41 of the White Paper states that the airport operator should 'put in place a scheme to address the problem of generalised blight resulting from the runway proposal'.
"In introducing this voluntary scheme, BAA are taking forward polices set out in Chapter 12 of the White Paper."
Mr Gordon says that, if the Under Secretary of State was intending to limit the relief to only some of the persons who were affected by generalised blight, he would have said so. He relies on the reference in the first sentence of the first paragraph to "providing appropriate compensation for all those affected by generalised blight". He says that the word "this" in the second sentence refers back to that statement. I am unable to accept this submission. It seems to me that the word "this" in the second sentence refers to the lack of statutory entitlement to compensation for generalised blight. The policy behind this letter is, to my mind, identical to that of the White Paper. It does not contemplate a voluntary scheme which would relieve all cases of generalised blight.
19. Turning to the specific complaints against the scheme made by the claimants, there is inevitably a substantial overlap in these different ways of formulating the criticisms that are made of the scheme. First, it is said that it fails to minimise the impact of generalised blight in accordance with the policy of the White Paper. Here it is important to note that the White Paper refers to minimising the impact of generalised blight. It says:
"We look to operators to minimise the impact on local people..."
As the defendants point out, it does not set a policy objective of eliminating the effect of blight. Clearly, judgements have to be made as to how to minimise the effect of blight. In addition, the scheme will have to be capable of being administered in practice. These are all matters of judgment. There is no indication in the White Paper that the voluntary scheme will be intended to eliminate the effect of generalised blight. Moreover, I am not assisted by the dictionary definition of "minimise", on which Mr Gordon relies, in the sense of reducing to the greatest extent possible. For reasons that I will come to, it is clear that what was contemplated was to provide for some but not for all cases.
20. Secondly, it is said that the first and second defendants have failed lawfully to address generalised blight because it will occur outside the noise contour which is employed. Here again, the White Paper does not contemplate that all affected will be assisted, so it cannot be said to be contrary to the objectives of the White Paper to adopt a scheme that may not assist all affected by generalised blight. Thirdly, it is said that the scheme boundary is irrational. No doubt, whatever boundaries are adopted, there are likely to be anomalous cases. However, the use of a noise contour cannot be said to be irrational or in any way an inappropriate response to the policy indication in the White Paper. There may be disagreement as to which contour is appropriate. That is a matter for judgement. The fact that this particular contour has been chosen does not mean that the scheme departs from the policy of the White Paper. Indeed, as we will see in a moment, the very opposite is the case.
21. Fourthly, it is said that there has been an unlawful failure to consider cases falling outside the scheme's boundary. Here again, the White Paper does not envisage that all cases of generalised blight will be catered for. Once it is accepted that a noise boundary can lawfully be used for a scheme of this sort, it is inevitable that some cases will fall outside it. That does not mean that it is unlawful. I will return presently to the suggestion that the boundary is too rigid.
22. In the White Paper, there was a specific reference to the scheme of compensation devised in respect of the Channel Tunnel Rail Link. It is at paragraph 12.17, which has been set out above. It recorded that:
"Recent precedents for the use of non-statutory schemes of this kind, include, for example, those used in connection with the construction of the Channel Tunnel Rail Link."
The first and second defendants and the Secretary of State say that this is precisely what the first and second defendants have done, that they have adopted a similar scheme to the CTRL, using a noise contour -- indeed, they say it is precisely the same noise contour -- and, in the circumstances, they say it is impossible to argue that the scheme does not reflect the policy of the White Paper. This morning, Mr Gordon produced details of the CTRL and contended that they did not bear out the submissions of the first and second defendants and the Secretary of State in this regard. He drew attention to the following passages:
"This brief sets out the agreed guidelines for the scheme, including details of how to apply and the general manner in which cases are dealt with. All applications are considered on their individual merits."
"Assessment of Serious Effect"
"URL must be of the opinion that your enjoyment of your property will be seriously affected by either the construction or the use of the CTRL. Serious effect may be caused by a number of factors including:-
"(a) Noise: If the predicted noise levels at your property from construction work are well in excess of 70 dB(A) (12 hour Laeq) over at least three months, or are predicted to increase by 1 dB(A) to a level of at least 68 dB Laeq (0600 - midnight) or 63 dB Laeq (midnight - 0600), due to the use of the CTRL, we will normally consider that your enjoyment of your property will be seriously affected by noise. In assessing the predicted noise level URL will take into account the benefits of any proposed environmental mitigation measures such as noise fencing or bunding. A Glossary of terms related to Noise Measurement may be found in Appendix 1.
"(b) Diminution in Value: If, at the time of assessment, your property is or is likely to be, in the opinion of URL, significantly diminished in value as a result of the CTRL proposal, we will normally consider it seriously affected. Diminution in value is the amount that the value of your property has been reduced due to the CTRL proposal and is normally expressed as a percentage of the assessed unaffected market value. The diminution will be assessed by our Valuers but you may submit any valuation advice you may have obtained. As a guide, a diminution in value of less than 15% would not normally be considered to have seriously affected your enjoyment of your property.
"(c) Medical Conditions: If in the opinion of URL you, or a dependent living with you in the property suffer from a medical condition (such as respiratory condition or tinnitus, but not stress or anxiety) which will be severely aggravated by physical effects, such as dust, noise or pollution, from either the construction of the railway or its use, we are likely to consider that your enjoyment of your property will be seriously affected. The factors listed in these guidelines are not exhaustive. Other factors or combinations of factors may cause serious effect and URL will take these into account when considering your application."
Read in isolation, that passage suggests that the noise contour is not the only criterion to be applied in deciding questions of eligibility for relief. However, when we go on to read paragraph 6, page 38, that provides:
"Except when the accepted reason for moving is based upon medical grounds as set out in paragraph 5(d) above, we will not normally offer to buy your property unless we are of the opinion that it will be seriously affected by BOTH diminution in value AND noise during the construction period, or the first year following the opening of the CTRL (see paragraph 2 above for an explanation of serious effect)."
It appears therefore that normally compensation will be available only to those satisfying both criteria (a) and (b), that is the criteria as to noise and diminution in value of the property. This, to my mind, demonstrates that the policy of the White Paper was not, as the claimants maintain, to provide full compensation for all persons affected by generalised blight. It was certainly not the effect of the CTRL scheme and, in the light of the reference in paragraph 12.17 of the White Paper to the CTRL scheme, I conclude that it was not the intention of this scheme either. It seems to me that the two schemes are comparable, subject to the question of flexibility, to which I shall return.
23. Finally in this regard, it is necessary to refer to the submission on behalf of the claimants that a compulsory remedy is no longer sought. I am persuaded that, in fact, what is now sought is tantamount to a compulsory remedy. The first two paragraphs of the proposed relief as reformulated claim (1) a declaration that BAA Stansted is obliged, when implement a scheme whose purpose is to give effect to the policy set out in the White Paper, to do so lawfully. (2) A declaration that in order lawfully to implement a scheme to give effect to the policy set out in the White Paper BAA Stansted is obliged to implement a scheme which includes within its scope persons in the position of the Second and Third defendants falling outside the 66 Leq noise contour but being affected by generalised blight. It seems to me that the combined effect of (1) and (2) would be to compel the first and second defendants to adopt a different more generous scheme. For these reasons, I conclude that ground 2 does not disclose an arguable case for Judicial Review.
24. I turn therefore to grounds 3 and 4, which are now directed against the Secretary of State. This challenge is on the basis of Articles 8(1) and 14 of European Convention on Human Rights and Article 1 of the First Protocol. In its original form, it was contended that the first and second defendants, in bringing forward the scheme, had failed to make provision for individuals such as the second claimant, who would suffer nevertheless from generalised blight. The answer to that, it seems to me, is that nothing which the first or second defendants did in bring forward the scheme infringed any Convention rights. The generalised blight is caused by the White Paper, or its implementation, not by the bringing forward of a voluntary scheme to mitigate its effects. The challenge to the vehicle intended to bring relief, whatever may be claimed to be its inadequacies, was aiming at the wrong target. Furthermore, it should be noted that the scheme does not affect statutory rights, it simply supplements those rights in the cases where it applies.
25. Mr Gordon, who was not originally instructed in this case, recognises these deficiencies in the claims originally formulated and now puts forward a radically different claim challenging a different act by a different body. The way in which it is put in the amended grounds is that the Secretary of State acted unlawfully in permitting the construction of the second runway in Stansted without implementing the appropriate mandatory measures for the provision of compensation to those affected by generalised blight. But, as the argument has evolved in the course of the hearing, it is now put in a different way which is reflected in the claimant's skeleton argument, at paragraph 32, where it is said that:
"The unlawful conduct of the Secretary of State is positively to support and continue to support and endorse the HOSS scheme in circumstances in which the requirements of the policy as set out in the White Paper are not met and/or to continue to express policy support for the development of Stansted in circumstances when ... insufficient provision has been made to address generalised blight."
26. Mr Gordon puts his case forward on alternative bases. First, he says that the Government has struck a balance between the competing interests -- that is between the interests of the individual property owners and the public at large -- and that that is to be found in the policy of the White Paper, as he interprets it. For reasons which I have already given, I consider that the White Paper is not capable of bearing the meaning for which he contends. The scheme, as contemplated by the Government in the White Paper, does not embody the balance for which he contends. Therefore, it is not open to him to contend that the meaning of the policy in the White Paper differing from that of the scheme necessarily demonstrates that there has been an infringement of ECHR rights because the scheme does not embody the balance drawn up in the White Paper. In the light of my conclusion that the scheme does fairly reflect the White Paper policy, this route, which was described by Mr Fordham as "the short cut", is not available to the claimants.
27. The second basis on which it is put is to say that, by endorsing the scheme, which fails to provide compensation for all persons affected by generalised blight, the Secretary of State has infringed the claimant's Convention rights. I turn first to Article 8. Article 8 protects the individual's right to respect for his or her private and family life and his or her home. In Hatton and others v UK, the European Court of Human Rights stated that there is no explicit right under the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. Other authority in Strasbourg supports the view that Article 8 could include a right to protection from severe environmental pollution. Hatton was of course a case concerned with actual aircraft noise but it is important to note that in that case the Grand Chamber reversed the decision of the initial hearing before the Court of Human Rights and the claims against the United Kingdom failed.
28. The present case is, in my judgement, very different. It is concerned with the possible diminution in value of property as a result of plans for the expansion of the airport in the future. I consider that it is not arguable that Article 8 is engaged in the circumstances of the present case. In any event, Article 8 requires a balance to be drawn between competing interests of the individual and the public and there is here a voluntary scheme which provides for the individuals who are most seriously affected. The claimants' case would require full provision for all who are affected and the European Court of Human Rights has emphasised that this is an area where the role of the domestic policy-maker should be given special weight. In the circumstances, I consider that there is no arguable case on Article 8.
29. Turning to Article 1 of the First Protocol of the Convention, we are not here concerned with actual or de facto expropriation but with a more limited interference with property. It is common ground amongst the parties that Article 1 of the First Protocol is engaged in this case. In the circumstances, the correct approach is that indicated by the Court of Appeal in R (Trailer and Marina (Leven) Ltd) v Secretary of the State for the Environment, Food and Rural Affairs and another  1 WLR 1267. There, Neuberger LJ, delivering the judgment of the court, referred at paragraph 45 to the fact that in cases concerned not with the deprivation of ownership of property but with control of the use of property, Article 1 of the First Protocol does not, at least normally, give rise to a right to compensation. At paragraph 50, Neuberger LJ said:
"Where there is no actual or de facto expropriation, the proper approach of the court to a complaint that there has been an infringement of article 1 of the First Protocol was spelled out in Jacobsson v Sweden (1989) 12 EHRR 56. The European Court of Human Rights, after explaining why Sporrong's case 5 EHRR 35 was distinguishable, said at 12 EHRR 56, para 55:
"Under the second paragraph of article 1 of Protocol No 1, the contracting states are entitled, amongst other things, to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for the purpose. However, as this provision is to be construed in the light of the general principle enunciated in the first sentence of the first paragraph, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In striking the fair balance thereby required between the general interest of the community and the requirements of the protection of the individual's fundamental rights, the authorities enjoy a wide margin of appreciation."
30. Mr Gordon has to put his case very high. He has to say that a fair balance requires his mandatory scheme; that is one which requires compensation to be available regardless of the noise contour, taking account of and providing compensation for any diminution in value and doing so for all of those who are affected by the generalised blight. To my mind, it is not arguable that approving a voluntary scheme which does not go this far is disproportionate.
31. Mr Gordon advances an alternative plea that it would be disproportionate to base the scheme on the noise contour without incorporating some element of flexibility. However, here again it does not appear to me that the use of the noise contour is a disproportionate response. Once it is accepted that it is justifiable to compensate only the severely disadvantaged, a line has to be drawn. It seems to me that this is an efficient and fair way of identifying those most severely affected by the generalised blight. In this regard, it is said that there is a departure from the scheme adopted by the CTRL. Here, I draw attention to paragraph 6, set out above, and the presence of the word "normally":
"... we will not normally offer to buy your property unless we are of the opinion that it will be seriously affected by BOTH diminution in value AND noise during the construction period, or the first year following the opening of the CTRL..."
The word normally also appears in paragraph 2(a) quoted above. So it is said, on behalf of the claimants, that there is a greater degree of flexibility in the CTRL than there is in the rest of the scheme. However, it is clear from the papers that are before me that, when it came to devising the present scheme, a deliberate decision was taken not to reproduce the CTRL exactly.
32. The documents setting out the scheme makes clear that other schemes have been reviewed.
"... we reviewed other voluntary support schemes which have been operating in England during the past five years.
"Although there are relatively few of these, we looked in particular at the Discretionary Purchase Scheme introduced by Union Properties. This was introduced as a result of uncertainty for home owners over the impacts of the proposed new high speed Channel Tunnel Rail Link (CTRL). The scheme closed in September 2003 following the opening of the rail line. It closely mirrors a scheme operated by the Highways Agency for new roads."
It continues in a later paragraph:
"In each case, we spoke directly to those involved in order to gather from their practical experience and working knowledge."
Under the heading "Scheme Boundary" it says:
"Our research into other schemes demonstrates quite clearly that it is desirable to have a definite boundary to the scheme, and this is one of the best means of providing clarity and certainty.
"Indeed, the need for a defined boundary, and an end to uncertainty, were two of the main requirements of respondents to our consultation.
"We fully acknowledge that in defining a boundary, we draw a line between those who qualify and those who do not, some of whom will live close to each other and that there will be places where that line appears arbitrary. The boundary therefore (as with other schemes) can be no more than a proxy for where generalised blight might exist.
"Our detailed research in the UK has also shown that it is normal to use a noise contour to determine the boundary of schemes that seek to address generalised blight. Questions have been raised about the appropriateness of using such a noise contour, while others have suggested that a different noise contour should be chosen -- or indeed that the noise contour should be adjusted in some areas to suit particular local circumstances. This has been the most challenging aspect for us in deciding the best and most appropriate way forward.
"On balance, however, we have decided to return the 66 Leq noise contour to define the boundary of the scheme. This is the area that the Government predicts will be the extent of medium to high levels of aircraft noise in 2030. This is comparable to the boundary of other voluntary schemes such as CTRL's, and we have no better basis of judging the possible area over which generalised blight might apply in any medium to longer term.
"It is important to make clear our intention not to deviate from this definition, because the experience of others suggests that to do so will create anomalies that cannot easily be remedied or defended."
33. So those putting forward the scheme concluded that it was desirable to have a definite boundary and they set out their reasons for taking that approach. In my judgement they were entitled to adopt them. As a matter of principle, having a workable blight line is not inconsistent with proportionality. I consider that the deliberate exclusion of a discretion does not make drawing a line disproportionate. I am fortified in this conclusion by the reasoning of Lord Hoffman in R (Carson v Secretary of State for Work and Pensions)  2 WLR 1369, at paragraph 41. There is an objective justification for such an approach: it is the need for legal certainty and a workable rule. It seems to me that the contrary view is unarguable.
34. Finally, I refer to Article 14. I doubt that Article 14 is engaged in the circumstances of this case. This scheme does not discriminate between individuals and groups on the basis of personal characteristics. If it did, then that would be the case whenever a distinction is drawn between different categories of property owners. But, in any event, it seems to me that any discrimination will be justified for the reasons that have already been given.
35. This is an application for permission and the applicable test is whether an arguable case has been made out: I consider that no arguable case has been made out and, accordingly, the application for permission is refused. In those circumstances, the further question of the protective costs order does not arise.
36. MR GORDON: Well, it may not arise, my Lord. The principles on which we rely would be relevant to defending any application for costs that are made against us but we have not yet heard that raised, so I will sit down.
37. MR JUSTICE LLOYD JONES: Right.
38. MR PHILLPOT: Before I start, if I could ask to have my copy of the White Book back, because I may need to refer to it. I do ask for an order that the claimants pay the defendants' costs. There are three elements of the defendants' costs. Of course, I am referring only to the first and the second defendants, on which I need to address your Lordship. The first of those costs involve the acknowledgment of service and summary grounds. My Lord, that should not be controversial as a matter of principle, although the sum, of course, is a matter of controversy and therefore we say that that is a matter for detailed assessment.
39. The claim of those costs was, as is appropriate, made in the body of the summary ground of defence. If I can give your Lordship the reference, it is page 158 of the application bundle, if your Lordship wants to turn that up.
40. MR JUSTICE LLOYD JONES: Paragraph?
41. MR PHILLPOT: It is paragraph 93 on page 158, which explains that the defence --
42. MR JUSTICE LLOYD JONES: I am sorry, paragraph --
43. MR PHILLPOT: Paragraph 93 on page 158 of the application bundle. Sorry, if I did not make that clear.
44. MR JUSTICE LLOYD JONES: No, my fault.
45. MR PHILLPOT: Your Lordship will see there the claim made, together with the sum, which has caused some controversy, and the authorities set out in support of that. Now, my Lord if I can ask your Lordship to turn on two pages to page 160, the order of Sullivan J under the heading "Costs", paragraph 6, it accepts that:
"... an award of costs is, in principle, justified upon the basis of the authorities ..."
Which I have just shown to your Lordship, that the figure claimed would appear to be disproportionate and therefore there ought to be a detailed assessment. Now, I do not propose to--
46. MR JUSTICE LLOYD JONES: I can see why he said that.
47. MR PHILLPOT: We do not dispute that the detailed assessment is required. In terms of the proceedings, we say we are entitled to our costs, whatever they turn out to be on the detailed assessment.
48. MR JUSTICE LLOYD JONES: The cost of lodging the acknowledgment of service and the--
49. MR PHILLPOT: Summary grounds of defence.
50. MR JUSTICE LLOYD JONES: And the grounds.
51. MR PHILLPOT: That is the first head of costs that we claim.
52. MR JUSTICE LLOYD JONES: And that figure relates to just the method.
53. MR PHILLPOT: That figure relates as set out. Now, the quantum. We could get into a debate about that --
54. MR JUSTICE LLOYD JONES: We will not.
55. MR PHILLPOT: -- but we do not think it is appropriate. The second head of costs are those cost incurred in resisting the application for a protective costs order. Now, my Lord, in the same bundle, if one turns back to page 132, this is looking at the end of the first and second defendants' response to the application and we say they may end up failing. At paragraphs 67 and 68, it is made clear that, if the application is unsuccessful, we seek an order that the claimant should pay our costs.
56. MR JUSTICE LLOYD JONES: And I think this was mostly your work on this occasion.
57. MR PHILLPOT: It is mostly my work, my Lord. However, the sum again is controversial because it exceeds the £1,000 set out as a guideline in the Corner House case. Again, we say they are reasons for that but that will be appropriate for detailed assessment in due course. But, in principle, we would put that it is fair for the respondent to do that on paper and it is quite clear from Corner House that, in principle, the claimants are liable for costs incurred in response to that application. I can take your Lordship to that, if that is helpful. It is in the application bundle, my Lord, at page 88. That helpfully includes the part of the application in hand. And at paragraph 78, I start six lines down:
"The claimant will of course be liable for the court fee(s) for pursuing the claim, and it will also be liable for the defendant's costs incurred in a successful resistance to an application for a PCO ... The costs incurred in resisting a PCO should have regard to the overriding objective in the peculiar circumstances of such an application, and recoverability will depend on the normal tests of proportionality and, where appropriate, necessity. We would not normally expect a defendant to be able to demonstrate that proportionate costs exceeded £1,000."
58. It is quite clear in principle that part of the PCO regime envisages the failure to respond to the cost of resisting in frivolous claims. So far, as it has turned out, my Lord, it has not been necessary to determine the application, but it is necessary for us to respond to the claimant.
59. The third head of costs is the one that I suspect is going to cause controversy on the present principle. We do make an application for our costs incurred in resisting the oral application for permission.
60. Now, my Lord it quite right that in the practice direction in Part 54, paragraph 8.1.6, there is a presumption against taking such an order and I readily acknowledge that the court has a discretion to make such an award where it is considered appropriate.
61. Now, my Lord, it may be helpful and I have noted that in the notes for rule 54.12 --
62. MR JUSTICE LLOYD JONES: What page is that?
63. MR PHILLPOT: It is at page 1579 of the 2005 edition.
64. MR JUSTICE LLOYD JONES: The year is out of date in this court, I am afraid.
65. MR PHILLPOT: Will it assist, it is Part 54.12 --
66. MR JUSTICE LLOYD JONES: It may be the same.
67. MR PHILLPOT: Would you like me to read it out?
68. MR JUSTICE LLOYD JONES: It is 54 --
69. MR PHILLPOT: The first part of 54.13, if that is a convenient way to find it. It is actually the last part of the notes to 54.12 and in my version it is that the court should not order an unsuccessful claimant to pay the costs of the defendant and/or interested party in any ordinary hearing, except in resisting an application in exceptional circumstances. And then it says:
"Such circumstances may consist of the presence of one or more of the following factors:
"(a) the hopelessness of the claim."
My Lord, we say that that applies here:
"(b) the persistence in it by the claimant after having been alerted to facts and/or of the law demonstrating its hopelessness;"
Again, we say that applies here by the order of Sullivan J. (c) we say does not apply, that is the extent to which the claimant sought to abuse the process of the court. We do not say that applies here. But (d) we say is precisely on the point:
"Whether, as a result of the deployment of full argument and documentary evidence ... the unsuccessful claimant has had, in effect, the advantage of an early substantive hearing of the claim."
70. It goes on to say the court may also consider the extent to which the unsuccessful claimant has substantial resources which it has used to pursue the unfounded claim and which are available to meet an order for costs. I will come to that point in a moment. But, my Lord we say that this hearing was a day and a half of full argument and full consideration of the documents including additional evidence, and the claimants had the benefit of the hearing that was sought. I do not want to take the point further than that. We say those circumstances are exceptional.
71. My Lord, there is no schedule of these costs. Again, that is a matter for detailed assessment. But there is one further matter that I ought to raise at this stage. I understand my learned friend may make a submission that, in the circumstances where we apply for these costs, the issue of PCO comes back and rears its head once again and I just--
72. MR JUSTICE LLOYD JONES: How does that work?
73. MR PHILLPOT: I understand it may be put that, in the light of our application for the costs of this hearing, the PCO will be resurrected as a live issue. Now, without wanting to go into the merit or otherwise of the PCO, there are four short points I wish to make as to why that is simply not the case. The first point, of course, is there is no costs order in existence which covers the previous two days of hearing. The second point is that the claimants have manifestly been able to bring these proceedings and to carry on with them for two days in the absence of such a protection. My Lord, that brings me on to the third point, which is that the whole reason for the existence of PCO as an option available to the court is to enable cases to be argued when it would not otherwise be able to, and that would have an argument that the only reason why that might be justified has gone away. We have had the argument; we have had the day in court. Has it been necessary to have PCO to achieve that?
74. The fourth point is this: it is not, as I understand it, said on behalf of the claimants that, if the case stops here, the claimants are unable to afford to pay the defendant's costs as there are no further costs that go beyond this. So, for those four reasons, we say the issue simply does not arise at this stage and would not --
75. MR JUSTICE LLOYD JONES: I had better hear from Mr Fordham.
76. MR PHILLPOT: Those are my submissions.
77. MR FORDHAM: My Lord, my position is, as I make clear in my written observations, that my client will seek a very modest order for his costs of preparing his written observations capped at one thousand pounds. Now, I do maintain that position and, if I can just explain, apart from the fact that we obviously had a separate interest as a proposed defendant for the ECHR points. The second of those points, which is that, in terms of your judgment, we have assisted your Lordship in deciding those questions that should be put, as the points raised show, which has saved costs. The public authority gives their power to grant the weight of the substantive hearing, runs all the arguments then gets their costs. But, apart from that, what I simply say is this: if you open Corner House, it makes clear at paragraph 80 that the Court of Appeal has envisaged a separate interested third party at the hearing, developing it the other way round. The third party has a distinct interest and is entitled to its costs. My application is manifestly well within the guidelines that --
78. MR JUSTICE LLOYD JONES: You are asking for the cost of the written submissions limited to a thousand pounds.
79. MR FORDHAM: Thirdly, what you have is a costs order, a protective cost order, and the principle is that you have to show you have an arguable case, and that is at paragraph 73. There is no basis at all, I am afraid, for Mr Gordon to be able to say, even if you were looking for those principles, then you gain some of the difference. My Lord, those are my submissions.
80. MR JUSTICE LLOYD JONES: Yes, thank you. Mr Gordon?
81. MR GORDON: My Lord, can I make clear, first of all that we are not seeking a protective costs order. All we are seeking is subject to -- there are a few points that I want to make but, essentially, that we do not have to pay a vast sum of money to BAA, because to have to do so would be to render this litigation, and any potential further litigation arising, prohibitively expensive, and those words are not mine, they come straight from the Aarhus Convention, which I will take you Lordship to if I have to. Can I indicate, first of all, that, so far as my learned friend Mr Fordham's position is concerned, it is subject to the overall balance that your Lordship determines is fair. We would not have a quarrel with a modest cap of one thousand pounds, that is what he seeks, and that would be the in accordance with Corner House. What we are very concerned about is not to disturb the established principle but to face a bill of £30,000 upwards before you even get to an oral hearing and we respectfully submit that that is not a matter which should be left to detailed assessment because quite serious points of law arise.
82. If your Lordship, just to cut through, particularly at this time of night, to reach our basic position, if your Lordship, having already heard my learned friend, Mr Phillpot, were minded to make what I would call the usual or rather the exceptional order in relation to lodging the acknowledgment of service, summary grounds and resistance to a PCO, then I would not make further submissions. But if your Lordship is minded to consider that this is an exceptional case -- I do not have the paragraph of the White book in front of me -- whereby a much greater sum should be awarded to BAA and/or they should have the option of arguing for £30,000 just on the material that they have put in, then I do, with respect, make the following submissions. First of all, this is not an exceptional case. If it were exceptional merely because it has gone on rather than longer than I thought, we would end up in a situation where virtually every intensive permission hearing would allow the defendants to claim Mount Cook for extra add-on costs.
83. But, secondly, my Lord, the position is that the first claimant is a parish council which has very limited funds. It has levied the precept exceptionally. Certainly, my fees, and those of the legal representatives acting for the claimants, are certainly not going to be paid quickly. The litigation had been funded by a very great commitment to raising the money. We have budgeted at £70,000 over a three- year period. That is how long it is going to take. It is the first claimant is indemnifying the second claimant --
84. MR JUSTICE LLOYD JONES: I was going to ask you about that.
85. MR GORDON: And I would certainly ask that, whatever order your Lordship makes is not against the second claimant and that is what the first claimant asks me to ask for. But, my Lord, the position is that overall, in an environmental public interest challenge of this kind, we do submit -- and this is where we overlap slightly with the PCO in this respect -- we do submit that, looking at the Aarhus Convention, it is absolutely clear, see, I think it is Article 9.4, that adequate and effective remedies should be provided and be fair at all times and not be prohibitively expensive and they cover procedures set out in, I think, Article 9.3, for challenging the legality of environmental decisions.
86. Now, my Lord, I fully accept we have lost and I fully accept, in the end, that your Lordship has held that the case is not arguable but the fact is that a great many detailed points of public importance have been put. Your Lordship recognised the importance of the case to the parties at the end of the hearing and it is simply the wrong context, in my submission, to use Mount Cook as a mantra that falls under this rubric.
87. MR JUSTICE LLOYD JONES: Setting to one side the costs of the oral hearing, setting that to one side for a minute, the application is that the first claimant should pay the Secretary of State's costs of the written submissions limited to £1,000 and should pay the first and second defendant's costs of the acknowledgment of service and the costs of resisting the application for the protective costs order. What do you say about those?
88. MR GORDON: I say they should be the conventional figure.
89. MR JUSTICE LLOYD JONES: You say that should be limited --
90. MR GORDON: The costs in terms of the protective costs order, my Lord. The cost of resisting the protective costs order, should be a conventional figure, which should be limited to one thousand pounds. I am told that, so far as the claim for the £23,000-odd is concerned, we would accept detailed assessment in the sense that it seems extraordinarily high but we would be prepared to fight that out in the detailed assessment.
91. MR JUSTICE LLOYD JONES: I am prepared to say in court that I consider it to be extraordinarily high.
92. MR GORDON: I think every judge that has considered it so far has had a similar view, including Collins J. I should just tell your Lordship this, that when I came into the case, I tried to ensure, if at all possible, that we could have a paper hearing on the PCO and, if we did not get it, it would be extremely difficult to go forward. In the end, Collins J put it all into an oral hearing. But the whole point of the Aarhus Convention and, indeed, for that matter, common sense, is that litigants who are bringing their own privately funded claim of public importance should not be prohibitively determined. Of course, one accepts that when you take the risk of litigation, in any instance, and the matter goes to the full hearing, often the costs would follow the event, although even then, there is a raft of case law, as your Lordship probably knows, on public interest cases saying no order is made. It is against that background, at the permission stage, that we do respectfully submit that there should be no further order for costs. It is not exceptional, in the sense that we should now have to pay for the permission hearing, what will clearly be an astronomical claim on the part of BAA, judging from the two previous figures that have been put. So far as BAA is concerned --the other point we should make is this: the Secretary of State, to be fair to my learned friend Mr Fordham, has had to meet a new case and yet, having had to meet a new case, he puts forward, with respect, it is probably a modest cap; whereas BAA has, in effect, under Ground 2, put the same points. It is true that is a third way of formulating it now, but, in effect, they have had the same case to deal with and they already put acknowledging submissions on the voluntary points that have been made. So, in my submission, if one just compares not so much the equality of arms as the equality of the defendants, there would be a certain disproportionality in exercising a costs discretion and in giving BAA a huge sum and the Secretary of State rather a small sum.
93. For all those reasons, perhaps I can make my submissions shortly, your Lordship knows what we accept and what we do not accept. It is a matter for judicial discretion, in the end, and we do invite your Lordship to say this is not exceptional so as justify a third set of Mr Phillpot's stages of costs, namely the costs of resisting the oral hearing.
94. MR JUSTICE LLOYD JONES: So far as the first and second defendant's costs of their acknowledgment of service, you are content that that should simply be summarily assessed?
95. MR GORDON: Well, I have received instructions to say that we are content with that, although we are really concerned about the figure but I am instructed that we are prepared to resist that on the detailed assessment.
96. MR JUSTICE LLOYD JONES: Mr Phillpot?
97. MR PHILLPOT: Just two very brief points. The first point is simply a matter of clarification. We are not concerned whether it is the first claimant or second claimant, it is simply that an order for costs is made against them. So far as the second claimant is concerned --
98. MR JUSTICE LLOYD JONES: I am not going to make an order for costs against the second claimant.
99. MR PHILLPOT: We do not ask for that particularly. The second point, my Lord, is an important point of law, which is in relation to the relevance of the Aarhus Convention. I just want to very briefly say why it is simply not relevant to apply it to a decision of this sort. Does your Lordship have the authority bundle to look at a couple of provisions to make this point good? It is important, potentially, because it has a present effect on this particular judgment.
100. My Lord, it I can start by looking at the first tab, at Article 9, which is the access to justice provision. It might help to have alongside this the claimant's skeleton to see which provisions they actually do rely upon, but, if necessary, I will come to that. Article 9.1 deals with access to justice in respect to a request for information under Article 4, so that is plainly not relevant here. It is Article 9.2, which is access to:
"... a review procedure before a court of law and/or another independent and impartial body... [I am reading from (b)] to challenge to substantive and procedural legality of any decision, act or omission subject to the provisions of article 6..."
So that, if I have understood the position correctly from the claimant's skeleton, is that which is relied upon by the claimants. If one goes to Article 6, this is the nature of the decision which Article 9 is covering:
"1. Each party:
"(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;"
Annex I contains a list of projects essentially. So the decisions under (a) are decisions to permit those activities. There is no decision in this case to permit those activities as the decision, the decision by my client, a compensation scheme to home value. We had not decided to permit any. (b), the alternative, it shall apply:
"... decisions on proposed activities not listed in annex I which may a significant effect on the environment."
It is the same point. It is simply not a decision which may have a significant effect on the environment. C is to do with national defences purposes, and not applicable at all.
101. The short point is that the decision to adopt HOSS simply is not an Article 6 decision, so Article 9 is of no relevance. The Aarhus Convention does not apply; it is not an environmental case as defined by the Aarhus Convention. This is a home value and property compensation case. It is quite different. So I submit that that is the important point, in essence.
102. MR JUSTICE LLOYD JONES: Yes, thank you very much.
103. MR FORDHAM: Will you forgive me if I just put down one marker in this regard, because if you are going to give a judgment on costs, then it deals with this vital point. It may be that nothing turns on it at all, but, again, it is on this issue of whether there is an environmental public interest challenge and environmental decision that Mr Gordon prays. I wanted your Lordship to be aware that I have joined issue with that on behalf of my client in this case in my observations on page 169, at the bottom of page, in the application bundle. I do not wish to make any submissions to your Lordship about whether the approach to costs would or would not be an environmental case, but I am concerned, either way, that what might be said, in this case, to prejudice the position on either foot in a case to which in that description is applicable. I say that in fairness, as it were, for the Government standing in the centre in this case. I am not seeking to put down any marker on either the restrictive approach to the environmental nor the other way, but I do have a concern that description --
104. MR JUSTICE LLOYD JONES: I understand why you make the point. I am not going to deliver a judgment on the basis of that point.
105. MR GORDON: My Lord, I am sure your Lordship is not. In our submission that is not answer. The only point I did want to make, however, is a small point, probably; but in fairness to our side, my learned friend, Mr Phillpot, is saying that an important point of law arose. He took your Lordship to the Aarhus Convention at 9.2, read your Lordship 9.2(a) and (b) but did not read 9.3. At 9.3 it says, and which we also rely on:
"In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."
That is very broad. Then 9.4, which talks about not prohibitive costs et cetera, refers inter alia to 9.3. Your Lordship does not have to decide this today.
106. MR JUSTICE LLOYD JONES: No, I am not going to.
107. MR GORDON: I just want to make sure that I do not lose the Aarhus Convention by default.
108. MR JUSTICE LLOYD JONES: Very well. I make no order for costs against the second claimant. The first claimant will pay the first and second defendants' costs of the acknowledgment of service, to be assessed, and the first and second defendants' costs of resisting the protective costs order, limited to the sum of one thousand pounds. The first claimant will also pay the Secretary of State's costs of lodging written submissions, limited to the sum of one thousand pounds.
109. I do not order the first claimant to pay the first and second defendants costs of the hearing. It seems to me that, in all the circumstances, that is the appropriate order to make, having regard to the submissions that have been made, notwithstanding the submissions of Mr Phillpot.
110. MR PHILLPOT: My Lord, I just ask for one point of clarification, which I am asked to raise. The costs of the acknowledgment of service will include the summary grounds of defence?
111. MR JUSTICE LLOYD JONES: It will.
112. MR GORDON: My Lord, there is just one other matter --
113. MR JUSTICE LLOYD JONES: I have thought of one, Mr Gordon, which is I suppose I ought technically to refuse permission to amend the grounds.
114. MR GORDON: Certainly. Yes, that would follow, I think. Now, my Lord, there are two points. First of all, I wonder, in relation to the transcript, of your Lordship's judgment, whether the court would order a transcript -- I think we have to obtain an order -- and order expedition. My Lord, the second point, and I am afraid I never know the answer to this, but I think the procedure is that one may renew to the Court of Appeal as a right but, because of this hybrid creature called an appeal, which you have to put on the appellant's notice, I am not sure whether you need permission to appeal.
115. MR JUSTICE LLOYD JONES: You do not. It is a renewal of the application.
116. MR GORDON: I am grateful. I think, subject to one thing, that is all I have to ask your Lordship.
117. MR JUSTICE LLOYD JONES: So far as the transcript is concerned, I think one of the questions is, if I order it, who pays for it, because I am told -- this may not be right, but I have come across it recently -- that if I order it, then it is paid for out of public funds. Setting aside one's enthusiasm for such benefits, that may not be appropriate.
118. MR GORDON: My Lord, I am not certain who pays for it, I have to say. But, expedition is more important than anything else. If we have to the pay, then we will have to pay for it.
119. MR JUSTICE LLOYD JONES: Well, I will say that the transcript should be produced and should be expedited and I will say it will be at claimant's expense.
120. MR GORDON: My Lord, the final matter, which I had forgotten, and I think I know the answer to -- it is not going to be very rushed but if we do decide to renew our appeal, we would ask for an extension of time of seven days. I do not think --
121. MR JUSTICE LLOYD JONES: I was just going to ask if I can. I do not think I can. (Pause) It is a matter for the Court of Appeal, Mr Gordon.
122. MR GORDON: My Lord, I am going to assume it is, unless --
123. MR FORDHAM: My Lord, the position in relation to permission to the appeal -- your Lordship is right, you do not give it, but in 52.15, the position is that my learned friend does need permission to appeal, but he gets it from the Court of Appeal. That is at 52.15 and that application is within seven days of your decision. Now, in fairness to my learned friend, I perhaps ought to say, that I have certainly asked for judges to extend time and I believe that I have been able to, whether with or without jurisdiction. It would be seem rather nonsensical if the Court of Appeal had to be bothered with an application to extend those seven days. It may be that the answer is that, in this occasion, it should be seven days from receipt of the transcript in circumstances where you have read out the permission judgment. I do not think I can take it any further. I do not think in good conscience I could sit here and let my learned friend say that he is concerned that he may not be able to get an extension of time from your Lordship. I agree that your Lordship does that jurisdiction and I have cited it myself in the past.
124. MR PHILLPOT: So far as it will assist, it is a fact which I have not come across myself and so --
125. MR JUSTICE LLOYD JONES: I am anxious to accommodate you, but I do not want to cause you to fall into a trap if it subsequently emerges, as I have been told by the Associate, that it is the case that I do not have the power to do it. It is not clear from 52.15, is it, that I do?
126. MR GORDON: Well, I wish I knew what the practice was based on; that is the difficulty there.
127. MR JUSTICE LLOYD JONES: Well, I think Mr Gordon, the way to deal with it is this: the order will not be drawn up immediately, and I will ask that -- I am very sympathetic to your application and so I should have submissions in writing on the appropriate form of the order by Friday. Does that assist?
128. MR GORDON: It assists. All that we are minded to ask for, if your Lordship does have the power, is simply we want an extension of time in order to consider that from the time of receipt of the transcript, because otherwise we are sort of in the dark.
129. My Lord, I appreciate your point.
130. MR JUSTICE LLOYD JONES: The transcript will come to me. I will do my best to turn it around very quickly, but, of course, we are coming up to a vacation, so that is a complicating factor. But I will see that you get it as soon as I have received it.
131. MR GORDON: I am very grateful, my Lord.
132. MR JUSTICE LLOYD JONES: It may well be that, on previous occasions, judges have said: if I have the power then I will do it.
133. MR GORDON: Nobody has really taken any point on my Lordship's jurisdiction possibly. We will do what we can to assist the court.
134. MR JUSTICE LLOYD JONES: I will say that, in the meantime, the order is not to be drawn up. (Pause) And I will ask that counsel should liaise with the Associate, who will give you his details presently in relation to the drawing up of the order. I can be contacted here until Wednesday of next week.
135. Can I thank you all very much for your assistance. I am really very grateful to you.