R. v. Surrey County Council exp Barron

Transcript date:

Friday, May 19, 2000



High Court

Judgement type:



Sullivan J




Royal Courts of Justice Strand

London WC2

19th May 2000

B e f o r e:




(Transcript of the stenograph notes of Smith Bernal International, 180 Fleet Street, London. London W2. Telephone 071-404-1400 Official Shorthand Writers to the Court.)


MR. R. JAY QC appeared on behalf of the applicant. (Instructed by Richard Buxton.)

MR. J. Findlay appeared on behalf of the respondents. (Instructed by the Borough solicitors.)




2. MR. JAY: In this application, I appear for Mrs. Barron. Mr. Findlay appears for the County Council. Did my skeleton argument reach Your Lordship?

3. MR. JUSTICE SULLIVAN: Your skeleton argument reached me at ten to ten this morning, and Mr. Findlay's skeleton argument reached me at 20 past ten this morning. So perhaps counsel could be forgiven if I say that I did form certain views myself on reading the papers which I shall put to you and see where we go. The provisional views - I stress provisional because I have not heard submissions - were these. It seems to me that this challenge was predominantly a private law rather than a public law challenge in that, if the Council has land, and I traverse that land and the Council says "I am going to charge you some money for doing that" and I say "but I've got an easement by way of prescription" or some form of grant, and/or you are estopped from denying, and "I have got an easement by reason of correspondence with me which you invited me to place on my title deeds", that is preeminently a private law claim. The public law comes in in so far as the doctrine of substantive legitimate expectation is somewhat wider and more flexible, if and in so far as ease, than the ordinary principles of estoppel. Both are based on fairness and I accept it's arguable that legitimate expectation is more flexible. It does seem to me perhaps that it would not be in the best interests of justice in so far as it does go a bit wider. You were precluded from arguing it and simply constrained to the position at common law and in equity, by refusal of permission to apply for judicial review. I am however firmly of the view that if permission is given, at the end of the day it is so much of a private law claim that certainly I ought to direct, I form the view, that it proceeds as a civil action and that the 86A be deemed to be the part 7 claim form. And as to venue, Chancery or Queen's Bench Division, it seems to me possible that the sensible thing to do is to say it stays in the Queen's Bench Division rather than with a judge without chancery or planning experience; but it proceeds as normal Queen's Bench action with the public law part tagged on. So I am bound to say that that, in my judgment, reflects the reality of the matter, where a huge amount of evidence is going to be required, or I should say potentially a large amount of evidence is going to be required, in respect of easement by way of prescription and/or implied grant. And also there is a fair amount of evidence of who said what to whom, and so on, in correspondence. Those are the preliminary views that I have formed, and you will see, subject to what Mr. Findlay says, I am not unsympathetic to the idea of leave being granted, but I am distinctly unsympathetic to this matter proceeding as a straightforward judicial review.

4. MR. JAY: Your Lordship's preliminary view is with respect not wholly dissimilar to the line I have taken in my skeleton argument, although I sought to say that the public law element is perhaps of greater importance than the weight Your Lordship accords to it. But I have submitted, as Your Lordship has seen, that the legitimate expectation argument adds a considerable element to my client's case, and it is more flexible, it is more pampered than the doctrine prior to estoppel.

5. MR. JUSTICE SULLIVAN: It is plainly arguable in the light of the authorities that you cited and I which have seen in other context. It is more flexible. How much more flexible is a matter for determination at the substantive hearing.

6. MR. JAY: And there is Lord Justice Sedley, or the Court of Appeal in ex-parte Coghlan which Your Lordship is familiar with. There is a point which arises on delay, which I know my friend Mr. Findlay is keen on.

7. MR. JUSTICE SULLIVAN: I think I would like to hear your response on that. Whether it is convenient to deal with it in the way that he puts his point on delay to me and you respond to it, or whether you want to make a pre-emptive strike, I don't mind.

8. MR. JAY: May I have a go by striking pre-emptively?

9. MR. JUSTICE SULLIVAN: One of the things that troubled me about the delay point is that there is one of these continuing policies, and so people are going to be charged and it is going to come forward, since in any event you could go off today, or as soon as something is demanded from you, and say "But I have these rights" without any leave at all, and the only thing you would not be allowed to raise is the legitimate expectation so far as the estoppel, how much delay is really a live issue. But you can certainly challenge, in so far as you can challenge in ordinary civil proceedings, the outcome of the decisions of 9th March; there is nothing the Council can do about that on the grounds of delay. How do you want to deal with delay? Are you going to want to make a pre-emptive strike or are we going to hear from Mr. Findlay and you then respond?

10. MR. JAY: If Your Lordship's preliminary view is favourable to the applicant, it may be that Mr. Findlay should go first.

11. MR. JUSTICE SULLIVAN: Subject to delay, I am bound to say - and he allies with that the prejudice point - but subject to that and subject to any submissions he may want to make on merits and formal procedures, I am sympathetic.

12. MR. JAY: The one point I would make quickly is that when I first saw the papers it was not clear to me which relevant decision it was, in other words, as Your Lordship knows, there is a March decision and a July decision. Yet we didn't have material that was added to the bundle yesterday, furnished by Surrey, which deals with the resolutions made at the two meetings.

13. MR. JUSTICE SULLIVAN: Sorry, where is this to be found?

14. MR. JAY: This is the material which starts at page 138 of the bundle.

15. MR. JUSTICE SULLIVAN: It is not stuff that is added - it is added, yes. In fact I think I do not even have it. It starts - I have got material that goes up to 137. My bundle went up to 105, and then there is another witness statement from Mr. Butts between 105 and 137.

16. MR. JAY: Has Your Lordship got 138 and following? It goes up from 138 to 146. This is material that Surrey provided.

17. MR. JUSTICE SULLIVAN: No I haven't - wait a minute - no I haven't. There are some loose pages, 123, 124, 136, but maybe they just replace things.

18. MR. JAY: They do. They are the signed versions.

19. MR. JUSTICE SULLIVAN: The answer is I don't. So this is all a complete mystery to me. You are making submissions on documents I have not seen.

20. MR. FINDLAY: There is either a breakdown of communication between the parties, but as I understood it, as those documents were put in the list, my friend's solicitors were going to provide copies to Your Lordship. Can I pass you up my copies. I am afraid I only have one, but if it is necessary...

21. MR. JUSTICE SULLIVAN: Can Mr. Findlay be provided with a spare one?

22. MR. FINDLAY: I am sure my instructing solicitor...

23. MR. JUSTICE SULLIVAN: Mr. Jay will give you his.

24. MR. FINDLAY: They are minutes of the relevant meetings, My Lord.

25. MR. JUSTICE SULLIVAN: It's better not to give me two copies. I think it's probably best to give Mr. Findlay back a copy. It goes from 138 to 146?

26. MR. FINDLAY: Yes, My Lord.

27. MR. JAY: On the 5th March, the County Council was considering the report which is in the earlier part of your reduced bundle. To identify it precisely, it is the report which starts at page 59. And at page 59 the report invited members to consider the initial set of proposals.


29. MR. JAY: My Lord, at the meeting on 5th March, Mr. Hardcastle - this is on page 139 - asked a question (he is Mrs. Barron's partner), he asked an astute question, and this is two-thirds of the way down the page: "Does the committee accept that the Council should normally stand by formal letters of reassurance?" etc. And an answer was given, and the Council went into closed session to consider Council's report and Council's advice. On page 141 there is a resolution a third of the way down the page, that a revised scale of charges be implemented. So, My Lord, a decision was made on 5th March, that has to be accepted. It was not the perception which I had, I have to say, when I first read the papers. But a decision was made. What Mr. Hardcastle and everyone else was expecting was publicity about it, precisely what was the substance of the decision. Because that, My Lord, only happened after July, as Your Lordship knows. What happened in July is that further consideration was given to the issues, and the report on that occasion...

30. MR. JUSTICE SULLIVAN: Can you take it slowly. What publicity was given to the introduction of the revised scheme of charges - for example, sending a copy of the revised list, so she would know about it?

31. MR. JAY: Not at that stage. What happened then, going back to page 70 of the bundle, this is a report of the meeting on 30th July.

32. MR. JUSTICE SULLIVAN: Up-to-date. Has there been correspondence or not?

33. MR. JAY: The correspondence post-dates. The summary says "The report is intended to bring the committee up to date on progress on outstanding matters following the principal decision to set a scale of charges", and then the background. Some of this I set out in my skeleton argument. The committee made a decision to set charges for rights of access. A number of miscellaneous matters remained to be investigated. Then further follow up letters with council, and his initial advice, "Council recommended writing to all those properties which had received letters acknowledging prescriptive rights of access" .

34. MR. JUSTICE SULLIVAN: These include the applicant?

35. MR. JAY: Yes. It did not happen after the 5th March. What the report goes on to say: "Further consultations have taken place with council on the form of such a letter and the information it should contain". My Lord, the form of the letter is at page 74.

36. MR. JUSTICE SULLIVAN: Is it in response to this letter of 30th July that the applicant then corresponds with the Council?

37. MR. JAY: Yes, and instructs a solicitor on 9th August.

38. MR. JUSTICE SULLIVAN: Why is it that important letters always seem to come just before people are going on holiday? There we are, that is the letter of 30th July.

39. MR. JAY: There was a press release at page 78, equally on 30th July, when the County Council said they were going to write to about 700 householders to explain the new policy of access.

40. MR. JUSTICE SULLIVAN: When is the date of this application for judicial review?

41. MR. JAY: 29th October.

42. MR. JUSTICE SULLIVAN: So 30th July press notice.

43. MR. JAY: Yes. And there is also a letter which invites the householders to apply for an information pack which gives further information. The letter is at page 80, and the information pack is at page 81. And Mrs. Barron applied for an information pack and got it after the 30th July. Precisely when, I don't know, but probably fairly soon afterwards. Apologising for jumping around, if Your Lordship will look again at the last paragraph on page 70, "The charging policy decided by the committee in March has generated a fair amount of correspondence, not just from householders which received acknowledgment letters, but also from those who did not receive the letters. The position is rather confusing for residents and has not been helped but the large amount of inaccurate and misleading information circulated in the areas most affected". That is obviously a rumour. This sort of problem or issue has not just arisen in Surrey. It arises up and down the country, and the point which we would seek to take is one, if I may be forgiven for exaggerating it, of national importance. What Mr. Hardcastle thought - and this is what he told me outside court - is, that it was not until he or Mrs. Barron got the letter at page 74 and applied for the information pack that it was appreciated that this was a final and irrevocable decision. But, strictly speaking, I suppose Mrs. Barron ought to be seeking to assail the decision of the 5th March and the decision of 30th July. My learned friend said there has been some prejudice to good administration, and he founds that submission on page 144 of the bundle.

44. MR. JUSTICE SULLIVAN: Some people...

45. MR. JAY: Two people were paid out - pardon me, paid - paid for the easements, they were obviously selling their houses between the March and July decisions, one on 22nd July and the other on 7th June. Other people had to pay after the 30th July, but in relation to that, in my submission, prejudice is far more difficult to establish since the 3 month period did not run out until 31st October, and Surrey were, pretty soon thereafter, served with the judicial review proceedings.

46. MR. JUSTICE SULLIVAN: It wouldn't be right to regard 3 months as something you can just use up to the last day, but the reality is these are a whole lot of residents, and it is an on-going and very complicated problem. It's not just a clearcut "the Council made an error here", full stop, because paragraph 5(b) says - well, that is not that sort of legal argument at all.

47. MR. JAY: No. It is accepted that some people had to pay. If the court were to rule in the applicant's favour, then they will have to be repaid. But that in my submission does not involve inordinate bureaucratic expenses.

48. MR. JUSTICE SULLIVAN: I have seen the sums involved. It is not as though the public authority, for example, has laid out hundreds of thousand of pounds which it will then have to recover from a whole lot of individuals. It has received - I don't know what the total sum is - but it is a few thousand pounds, and it will be a matter for it to consider whether it gives it back or not. We will see what Mr. Findlay says about the disruption that would cause to Surrey's budget.

49. MR. JAY: Yes. The only other point is the illuminating judgment of Mr. Justice Morris Kay in the Lewinpy's (?) case, the progressive approach the court adopted in that case with delay. Even in a case where there wasn't any good reason for a delay, the court nonetheless extended time.

50. MR. JUSTICE SULLIVAN: And as I have indicated, since a substantial part of this case can be brought anyway, the only question is whether it is in the interests of justice to say "No, you cannot bring the remainder".

51. MR. JAY: My Lord, those are my submissions.

52. MR. JUSTICE SULLIVAN: Yes. Thank you. Mr. Findlay, delay.

53. MR. FINDLAY: My Lord, I start from the point that my learned friend accepted, that the decision, the defect that needs to be challenged, is that of 5th March. The one matter that Your Lordship may have been slightly misled on is, Mr. Hardcastle is clearly a mover behind this challenge. He was clearly present at the meeting of 5th March. It is quite right the meeting did go into private session, but only for a matter of just over between 20 and 30 minutes, and the item that forms the substance of the matter before Your Lordship was in fact considered in public session. My Lord, one can see that at the bottom of page 140, just under "Members' question time - no questions were received", and below that "The committee resolved.....probably be excluded", then "Following consideration of this item..."

54. MR. JUSTICE SULLIVAN: "To move back to item 6".

55. MR. FINDLAY: Yes. And item 6 then follows, and over the page one gets the result to item 6. My Lord, there is certainly no evidence before Your Lordship that Mr. Hardcastle was there at that stage of the meeting and was not aware of the resolution that was passed. So, My Lord, I know not, my learned friend referred to correspondence generated by the meeting; it is clearly between that meeting and the meeting in July. And it is clear that the result of that meeting was public knowledge, if one accepts the terms of the committee report of the 30th July which is at page 70, the passage my learned friend took you to, that the charging policy has generated a fair amount of correspondence. Your Lordship has that at the bottom of page 70.

56. MR. JUSTICE SULLIVAN: Yes. Fair amount of correspondence; household.

57. MR. FINDLAY: My Lord, I simply make the point that, in our submission, it is highly likely that given Mr. Hardcastle's presence at the meeting of the 5th March and the generation of activity which followed it, that he and the applicant in this case were aware that a decision had been taken. My Lord, I accept...

58. MR. JUSTICE SULLIVAN: The trouble is what sort of decision? The summary is "the initial set of proposals". Clearly, just how definitive, if you like, the decision is? We now know with hindsight what it is.

59. MR. FINDLAY: My Lord, that's what the report says. But if one goes to the minutes, page 141, "The resolutions are that the revised set of charges be introduced and that the implementation of the scale of charges be subject to the matters detailed in paragraph 18 and 23 of the report". If one goes to the report, pages 63 and 65 respectively, page 63, paragraph 18 simply sets out some safeguards as to the introduction of the scale of charges - paragraph 18 on that page. Paragraph 23 deals with the introduction. And, My Lord, paragraph 23 is an important paragraph because it puts in context what is being asked for on that date. Does Your Lordship have that at page 65?

60. MR. JUSTICE SULLIVAN: Yes I do. "Until the resolution of detailed matters be included in the June report, it is recommended that officers should deal only with applications relating to properties which are in the course of being sold..."

61. MR. FINDLAY: I place some emphasis on the first sentence: "The working group recommends that the revised policy shall come into effect from the date of this committee". My Lord, some working out of that policy had to take place, but anyone reading that report and not attending the meeting, if they heard the resolution being passed, could reasonably conclude that the revised policy had come into effect and that provision is made for officers to deal with applications before the next committee meeting in accordance with that policy; and they did, as Your Lordship knows.

62. MR. JUSTICE SULLIVAN: That is pretty artificial there, isn't it, Mr. Findlay, in the sense that I do not really think that if it was someone who was not a partner of the present applicant who was present at the meeting (and we know there were a lot of people affected by this) and someone else came along and said "I really didn't know anything very much about this until the 30 July. The Council then told me I will be getting an information pack because it was recognised it was all a bit confusing. I then got the information pack and thereafter I acted reasonably fast, given that the information pack started to be distributed in middle of the holiday season"...

63. MR. FINDLAY: Yes, My Lord, I accept that, but that is not this case because there are no other challenges that come forward. And if this challenge hadn't come forward and someone sought to raise a ministry of public law point now, the matter would be dealt with differently and delay would certainly raise its head. In my submission, Your Lordship has to consider this challenge and acknowledge these applicants and that is the way the courts have approached the matter, or normally approach the matter, in my submission. I accept that I face two hurdles before I convince Your Lordship that delay is a substantive issue. One is that the action is likely to proceed in any event in the Chancery Division.

64. MR. JUSTICE SULLIVAN: Or quite bit of it anyway.

65. MR. FINDLAY: Or quite a bit of it. The concern that Surrey have is that those people who have paid the Council are, I am informed, only likely to have done so in the context of the sale of their property. So it's not just simply the prospect of Surrey having to repay money to X. There would be complications as to who is entitled to that money, if anybody, and potential arguments between vendors and purchasers of the property as to who is entitled to have the money. So I do not put the administrative problem simply on the basis of 'Surrey will have to pay out some money that it's received', because I am not instructed on that one way or the other, but I accept Your Lordship's point that, in the context of Surrey's budget, sums are small.

66. MR. JUSTICE SULLIVAN: On the other hand, if I say to you "Mr. Findlay, there is a prospect that you will be repaid some money that you paid over", there of course you may have a difficulty, because you may have an argument with somebody else as to whether you or he should get it. Maybe you wouldn't feel too prejudiced because the alternative is you don't have any chance of getting the money back at all.

67. MR. FINDLAY: Well, they would have to unravel that situation.

68. MR. JUSTICE SULLIVAN: You have that burden of unraveling.

69. MR. FINDLAY: The other position is that if the difference between this applicant challenging on the basis of legitimate expectation and/or estoppel, where the factual circumstances would be very important, they may well differ from other applicants' factual circumstances and situations, both as to the estoppel and as to the legitimate expectation.

70. MR. JUSTICE SULLIVAN: That is why I am bound to say that it seems to me rather important that the matter is looked at in the round, because it may be that there is a broader legitimate expectation than there would be on estoppel on the particular facts of the individual case.

71. MR. FINDLAY: But the impact of that is that it then leaves the policy suspect. And until that matter is solved, if Your Lordship considers the position of another third party seeking to sell the house and having concerns over the right of access, that there would be an uncertainty there that may well cause difficulties.

72. MR. JUSTICE SULLIVAN: Presumably, unless I was to give interim relief, which I am bound to say I am not minded to do since the sums are not particularly large, no doubt they will be continued to be asked for and paid over, but those paying it over will say to the Council "keep it in a special account". I would not have thought it would cause the council too much difficulty just to keep those, as it were, in suspense. I think the sums of money - what does it all amount to, it's less than 50,000 pounds, isn't it?

73. MR. FINDLAY: It is. It is more the number of transactions it affects that I place the prejudice on rather than the amount. Can I tell Your Lordship that these are primarily all what I class as C2 transactions, i.e. people who had a letter akin to the applicant, so they are very much on a par with this application. I am told in total there have been some 11 payments to the Council of which 9 are class C2 in the classification that the Council has adopted for payment.

74. MR. JUSTICE SULLIVAN: I hear that. I can see that the more applicants there are, the more payments that are made, the more inconvenience there is to the Council. Equally, it might provide a bit more power to Mr. Jay's elbow in saying that this is actually a point of some considerable importance.

75. MR. FINDLAY: It is a point of importance that no one else has sought fit to raise save for this one applicant.

76. MR. JUSTICE SULLIVAN: I see that. On the other hand the reality is, if you are selling your house, certainly the last thing you want is litigation, so you pay a few thousand pounds to the council and don't argue, it seems to me in reality.

77. MR. FINDLAY: My Lord, I accept that in the future that may be the case, but I think Your Lordship has my point.

78. MR. JUSTICE SULLIVAN: Yes, I have your point.

79. MR. FINDLAY: Those who have paid it over, there will be more complications...

80. MR. JUSTICE SULLIVAN: Do you want to say any more about delay and prejudice?

81. MR. FINDLAY: No, My Lord, save that I suggest that time will start running from the decision of the 5th March until the application is in fact lodged which was in October, and certainly some 6 or 7 transactions have taken place by the time the application was lodged rather than the two my learned friend sought to advance. No, I don't have any other observations if your Your Lordship is minded to follow that course - save one: in the summary at the end of the Coghlan case, the court, being the judgment of the court, the Court of Appeal summarised their view that the decision of the local authority under challenge, in that case the health authority, "constituted unfairness that amounted to an abuse of power by the health authority". If one stands back from the intricate legal arguments in this case and accepts that the Council is correct in its views that there is no estoppel or other form of prescription here, so that my learned friend simply rests on his public law administrative challenge and loses his private law challenge, My Lord, I simply put it this way: in the way the Council has dealt with this and the history of the matter, given the reason why it's changed its mind, there is the intervening Court of Appeal decision, could it really ever be said that this is unfairness amounting to an abuse of process? I simply ask Your Lordship to take a broad brush approach on that view. But if Your Lordship says there is no point on that, I say no more.

82. MR. JUSTICE SULLIVAN: Thank you very much. I am satisfied that permission ought to be granted in this case. I am partly impressed by the fact that a substantial part of the claim could proceed in any event by way of private law action, and I think it is in the interests of justice that the full breadth of the applicant's claim ought to be able to be put. So in so far as legitimate expectation extends broader than estoppel, it is not desirable that it be shut out. As far as delay and prejudice are concerned, I am satisfied that there has been some delay, but equally I am satisfied that there is good reason for extending time. It seems to me it is by no means clear whether a definitive decision had been taken in March and, following receipt of the information pack at the very end of July, it seems to me that the applicant has acted reasonably promptly. Moreover, it does seem to me that any prejudice, particularly to the Council, is relatively small. Although a small number of people have paid over sums of money, the sums are not very large and it should not be administratively impossible to arrange effectively for any sums paid to be kept in a separately identifiable account and the Council to repay them, or at least to consider repaying them at the end of the day, if the application is successful. It seems to me overall that the sums are not so enormous that it is likely to cause any significant administrative problem, although I appreciate that there will be a degree of administrative inconvenience. So permission granted. There does not seem to be any dissent from the proposition that at least to some extent I should order, under order 53, rule 9, that the matter proceeds as a civil action. Mr. Jay, unless there are any further submissions you want to make about that, because I realise I am differing slightly from the position of the halfway house that you adopted in your skeleton, but my view is it ought to proceed as a civil action. Your 86A will be taken as your part 7 claim. The matter ought to be dealt with in the High Court. I am perfectly prepared to hear submissions from either of you as to whether it's more appropriate to be dealt with in the Chancery Division or Queen's Bench Division, but I would have thought that the appropriate points are not so obscure that they couldn't be grasped by a Queen's Bench judge. Therefore one could say it can stay in the Queen's Bench division, but the sensible thing to do is to say it's dealt with by, I would have thought, given that there is an element of public law in it, a nominated judge with either Chancery and/or planning experience. Would that be a sensible suggestion?

83. MR. FINDLAY: Yes, My Lord.

84. MR. JUSTICE SULLIVAN: That's what I order. Is there anything else?

85. MR. FINDLAY: The only other direction that I would ask Your Lordship would be to - I don't have at my finger tips the time for filing a defence, but perhaps Your Lordship would, given the nature of the claim, extend the time to file a defence for 6 weeks.

86. MR. JUSTICE SULLIVAN: Yes. If this had proceeded by way of judicial review, then what would be effectively your defence would be your affidavits, and you have however many days it is to...

87. MR. FINDLAY: We have 56 days.

88. MR. JUSTICE SULLIVAN: 56 days. Would you object to an extension for filing the defence or some extension?

89. MR. JAY: Some extension; it would be 14 days under the CPR.

90. MR. JUSTICE SULLIVAN: 14 days is manifestly insufficient for a case of this complexity. So what are you asking for?

91. MR. FINDLAY: I am asking for six weeks, which is not quite as much as 56 days but more than 14 days.

92. MR. JAY: We would certainly like this matter to be heard as expeditiously as possible given that there may be land owners wishing to sell their houses, and it is of concern in the interim.

93. MR. JUSTICE SULLIVAN: There isn't an application for expedition before me, and I think you have to make that in the light of the material of the defence. On the material as it stands at the moment, were you to make an application for expedition, given the state of Crown Office lists and the sort of things that have to be expedited, I think you would be facing an uphill struggle.

94. MR. JAY: It may be that following the defence there ought to be a directions hearing in front of the Crown Office master to see how the case is going to proceed. It depends on the issues which arise. But, My Lord, may we consider that once we have seen the defence?

95. MR. JUSTICE SULLIVAN: Yes, certainly. And you have six weeks for the defence. So the matter is to proceed as a normal Queen's Bench civil action subject to the point that it's to be heard by a nominated judge with planning or chancery experience.

96. MR. FINDLAY: Would Your Lordship say 'costs reserved'?

97. MR. JAY: It is costs in the application or in the action.

98. MR. JUSTICE SULLIVAN: Well, you would ask for costs in the action?

99. MR. JAY: Yes.

100. MR. FINDLAY: I can't resist that.

101. MR. JUSTICE SULLIVAN: Right; costs in the action.