Smith v Gatwick Airport Ltd.

J U D G M E N T

1. MR JUSTICE HARRISION: This is an appeal by way of case stated against a decision of District Judge (Magistrates' Courts) Arnold sitting at Brighton Magistrates' Court on 18th June 2002 when she dismissed an information brought by the appellant against the respondent alleging that on 9th May 2000 the defendant had failed to comply with its duty owed under section 3(1) of the Health and Safety at Work Etc Act 1974 in that Urwashi Patel sustained serious injuries whilst riding on an invalid luggage buggy, contrary to section 33(1)(a) of that Act. The district judge dismissed the information after a submission of no case to answer made by the respondent at the end of the appellant's case.

2. The appellant, Mr Smith, is a health and safety inspector employed by Crawley Borough Council. The respondent, Gatwick Airport Ltd, a wholly owned subsidiary of BAA plc, was at the material time the owner and operator of Gatwick Airport. The prosecution arose as a result of an accident which occurred on 9th May 2000 in the North Terminal at Gatwick Airport when Mrs Patel, a passenger who had travelled from Florida, sustained a serious degloving injury to her right middle finger whilst being conveyed from the baggage reclaim hall to the arrivals lounge in a buggy used for transporting disabled persons. The result of the injury was that the skin of her finger with her ring on it was stripped down to the bone along the length of the finger, and was found on the floor by a lady following the buggy.

3. The defendant was charged with failing to comply with its duty under section 3(1) of the Health and Safety at Work Etc Act 1974, contrary to section 33(1)(a) of that Act. Section 3(1) provides:

"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."

4. Section 33(1)(a) provides that it is an offence for a person to fail to discharge a duty to which he is subject by virtue of section 3(1).

5. Section 40 deals with the onus of proving what is reasonably practicable. It provides as follows:

"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something ... so far as is reasonably practicable ... it shall be for the accused to prove ... that it was ... not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."

6. The appellant's case before the district judge was that Mrs Patel was travelling on a buggy driven by Mr Hennessy through a doorway between the baggage reclaim hall and the arrivals hall when a fire door, which was normally held open by a magnetic catch, started to close. Mrs Patel put her right hand out to try and push it away and caught her finger on a screw protruding about 3mm from the push plate of the door, resulting in the degloving injury to her finger. It was contended by the appellant that the loose protruding screw and the faulty magnetic catch exposed persons not in the respondent's employment, in this case Mrs Patel, to risk of injury affecting their health and safety.

7. Having heard the evidence called on behalf of the appellant, the district judge acceded to the respondent's submission that there was no case to answer. In giving the reasons for her decision, which she provided in writing to the parties after she had given her decision, she stated:

"I do however concur with the defence in so far as it is said that the Crown have not shown that persons not in the defendant's employment, more particularly in this case Mrs Patel, have been exposed to a possibility of danger by virtue of the conduct of their undertaking, for I have heard no evidence as to the actual cause of the door closing immediately before Mrs Patel suffered her most serious injury, nor that the protruding screw actually caused the injury in question. What the Crown seeks, as the defence submit, is essentially to say that the thing speaks for itself, and that simply is not good enough in a criminal case. They say that when Mrs Patel put her hand up instinctively as the door began to close for whatever reason, because I have heard no evidence from the Crown as to why the door actually began to close, her ring caught in a protruding screw injuring her finger, and there is no evidence to support that nor that a screw protruding an estimated 3mm would have exposed the public to risk.

"Even if I am wrong on those points and there is evidence of exposure to risk then I say this; were I to hear nothing more from the defence then the prosecution evidence, taken at its highest, is such that a tribunal properly directed could not properly convict upon it. Accordingly I uphold the defendant company's submission."

In paragraph 6 of the case stated, the district judge stated as follows:

"I was of opinion that there was no evidence to show that Gatwick Airport Limited had failed in its duty to conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in its employment who may be affected thereby were not thereby exposed to risks to their health or safety. I came to that conclusion for the following reasons. First there was no evidence before me other than assumption as to the cause of the injury to Mrs Patel. Second, there was no evidence, only assumptions by the witnesses, as to the reason for the door closing. Third, there was no evidence before me that the screw had been protruding immediately before or at the time of the injury being caused to Mrs Patel. Whilst it is clear that proof of injury and its cause is not crucial to a case of this nature I did not consider it open to me without more to import a risk from the mere closing of a door or the protrusion, after the event, by approximately 3mm of a bent screw or indeed from those two facts coupled together. Accordingly I dismissed the charge against the defendant company."

8. The two questions of law on which the district judge seeks the opinion of the court are:

"(a) whether I was correct in law to uphold the submission of no case to answer at the conclusion of the prosecution case on the basis that there was no evidence of exposure to risk; and

(b) if the answer to the first question is in the negative whether I was correct in dismissing the charge at the conclusion of the prosecution case, believing that I need not hear the evidence for the defence because the prosecution evidence was such that I could not be satisfied that the Crown's case was proved beyond reasonable doubt."

9. The answers to those questions necessitate consideration of the evidence adduced on behalf of the appellant, which is helpfully summarised in paragraphs 2(a) to (e) of the case stated.

10. The evidence of Mrs Patel was contained in a statement which was read to the court pursuant to section 9 of the Criminal Justice Act 1967. She arrived at the North Terminal at Gatwick Airport at 9am, having flown in from Florida. She was transferred from a wheelchair to a buggy and taken with some other passengers on the buggy to collect their luggage. She was then driven on the buggy to the arrivals lounge through the special needs exit. All she could remember of the accident was that, at the relevant time, she was sitting on the right side of the buggy as it approached the special needs exit from the luggage reclaim hall to the arrivals lounge when, after some sliding doors had opened and the buggy was proceeding through the doors, a lady came from behind and gave her something, saying, "Keep your finger, love", whereupon Mrs Patel looked at her right hand and noticed blood. That lady was Mrs Puddick, whose evidence I will come to in a moment. In any event, Mrs Patel's finger was put in some ice and she was subsequently taken to hospital.

11. The next witness was Mr Hennessy, who was the driver of the buggy. He described how there was a warning plate on the back of the row of seats in front of Mrs Patel, who was facing forwards, which was clearly visible to her and which warned passengers to keep their hands, arms and legs inside the buggy. By the time the buggy reached the exit, he had given the passengers a verbal warning to that effect on at least three occasions. He said that, on the approach to the exit, the set of glass sliding doors opened, but the blue fire door on his right-hand side came loose from the magnetic catch which secured it back against the wall in the open position. He was driving very slowly at the time and did not touch the fire door with the buggy; the left-hand fire door never closed at any time. He stopped the buggy momentarily, in accordance with his working regulations, and stood up and pushed the door back on to its magnetic catch, and he assumed it was secure. He did not know what happened after that, as he carried on through the doors and was concentrating on what was ahead of him. He had cleared the doors by all but a foot and turned round and Mrs Patel held her hand out. He stopped the buggy straightaway and went around to Mrs Patel who showed him her injured finger.

12. The third witness was Mrs Puddick, an employee at the airport who was following on foot behind the buggy and had caught it up by the time it approached the doors. She stated that she saw Mr Hennessy put his hand up to stop the right-hand dark blue fire door that had started to close. He did not stop or stand up as the door began to close; he slowed the buggy down and put his hand out to stop the door, but it did not catch. She saw Mrs Patel put her hand out as if to try and stop the door in a backwards and possibly downwards movement whilst the buggy was going forward. She heard Mr Hennessy tell Mrs Patel not to do that, but to keep her hands in. Mrs Puddick ran forward to try and push the door back herself. The buggy stopped about a couple of feet past the doors in a central position. She did not remember seeing the buggy touch the sides as she was walking behind it. After the buggy had stopped, she noticed a finger on the floor which still had a ring on it. She picked it up, thinking it was a prosthesis as it had no blood on it. She drew Mrs Patel's attention to it and telephoned the emergency services.

13. Next to give evidence was Mr Evans, who was employed by a firm of contractors called T H Kenyons who were responsible for maintenance at the airport. He explained that there were about 2,000 doors at the North and South Terminals at the airport which were inspected at six monthly intervals in accordance with the relevant British Standard. The last time the doors through which Mrs Patel passed were inspected was on 4th March 2000. Mr Evans prepared an accident report on the same day as Mrs Patel's injury. He explained that there were three identical sets of double doors going into the arrivals hall, the other two being to the left of the doors through which Mrs Patel passed. He referred to some works orders and related work order histories relating to doors into the arrivals hall, to which I will refer separately in a moment. On 9th May 2000 he inspected the doors where the incident occurred. It would appear from the works orders that the inspection was at 4.39pm. He said that he had found them to be in full working order but he did not check the efficiency of the magnetic catch, although the door was holding back when he got there. He found one of the fixtures to the push plate to be protruding. He did not measure the protrusion, but he thought it was about 3mm. He said that the fixing was bent over and it appeared to him that something had caught it and bent it.

14. Finally, so far as the evidence of witnesses is concerned, Mr Smith, the prosecuter, gave evidence that he had required the respondent to produce any fault reports in relation to the relevant door, known as door 0229, and it was as a result of that request that the works orders and work order histories which I mentioned were produced. He said that, although he was not sure what had happened to cause Mrs Patel's injury, it would appear from his investigation that Mrs Patel made an involuntary movement and that a screw was protruding which caught her wedding ring finger and caused her injury. He accepted that he had not carried out a number of investigationary techniques.

15. There are only two aspects of the documentary evidence to which I should refer. Firstly, a report was made on behalf of the respondent to the enforcing authority on the day of the accident, which stated:

"While exiting the Customs Hall on an invalid buggy Mrs Patel pushed at a door, which resulted in her snagging her finger on something and injuring her finger."

16. Secondly, the works orders and related work histories sent to Mr Smith pursuant to his request dealt with faults found on four previous occasions, namely 8th February 2000, 6th March 2000, 12th April 2000 and 18th April 2000. It is accepted on behalf of the respondent that the first two of those four reports deal with the set of doors through which Mrs Patel passed, but it is said that it is not clear which of the two doors in that set of doors the report relates to. Both reports refer to the fire door being damaged and not having good contact with, or not holding back onto, the magnetic retainer. The respondent makes the point that it is not known which of the three sets of doors the last two reports relate to. The appellant points out that the reports were submitted in response to a request for fault reports relating to door 0229. The last of those two reports, dated 18th April 2002, refers to the magnetic catch being faulty. Both parties, however, accept that the relevance of those reports really relates to the issue of reasonable practicability. Indeed, when giving reasons for her decision, the district judge concluded that they were of no relevance other than to the issue of reasonable practicability as and when that issue arose.

17. The issue that I have to decide is whether the district judge was right in concluding that there was no case to answer for the reasons, as expressed in paragraph 6 of the case stated, that there was no evidence as to the cause of Mrs Patel's injury, no evidence as to the reason for the door closing and no evidence that the screw had been protruding immediately before or at the time of Mrs Patel's injury. It is clear that those reasons lay at the heart of her conclusion that there was no evidence of exposure to risk.

18. Mr Forlin, in seeking on behalf of the respondent to uphold the district judge's decision, submitted, rightly in my view, that I should be reluctant to interfere with the findings of the district judge's decision because she had heard the witnesses give their evidence. He submitted that there were discrepancies or inconsistencies between the evidence of Mr Hennessy and Mrs Puddick. When pressed, those inconsistencies were limited to whether or not Mr Hennessy stopped the buggy and stood up when the door began to close, and how many times Mr Hennessy warned Mrs Patel to keep her arms and legs inside the buggy.

19. So far as the first of those inconsistencies is concerned, the district judge said, when giving reasons for her decision:

"I agree with the Crown that it matters not that there is a conflict whether the driver of the buggy in which Mrs Patel was being conveyed stopped or stood up when the door began to close."

I agree that any conflict on that point does not go to the heart of the issue in this case. So far as the second of the alleged inconsistencies is concerned, there is no suggestion, nor likelihood, that Mrs Puddick was present on any of the other occasions when Mr Hennessy warned Mrs Patel, apart from the warning about which she gave evidence. It follows that there was no real issue about the reliability of the evidence given by the witnesses.

20. Nevertheless, Mr Forlin made the submission that he made successfully before the district judge that it was not possible to be sure how the accident happened. He submitted, as he did before the district judge, that the appellant cannot rely on the doctrine of res ipsa loquitur . He relied on Mr Smith's evidence that he was not sure what had happened to cause Mrs Patel's injury and that he would not have prosecuted on the basis of the screw alone. Mr Forlin suggested that it was not possible to be sure about the degree to which the screw was protruding before the accident, bearing in mind that it must have been pulled out to a degree when it became bent.

21. In my view, it is necessary to keep one's feet firmly on the ground and to apply common sense to the facts of this case. I entirely agree that the doctrine of res ipsa loquitur has no application to this criminal case. This is, however, a classic case for the judge to draw inferences from the primary facts.

22. Dealing with the first of the three reasons given by the district judge for her decision, namely that there was no evidence, other than assumption, as to the cause of Mrs Patel's injury, there must, in my view, be an irresistible inference from the evidence that was given that the injury was caused by the fire door coming off its magnetic catch and starting to close so that Mrs Patel put out her hand to push it away, and caught her finger with the ring on it in the protruding screw attached to the door plate. There was clear evidence that the fire door was normally kept open on a magnetic catch, that the door was closing as the buggy was going through, that Mrs Patel put her hand out to it as if to try and stop it in a backwards and possibly downwards motion as the buggy was going forwards, that her degloving injury was caused at that time because the finger was found on the floor immediately afterwards, and that there was found to be a protruding and bent screw on the door push plate when the door was inspected at 4.39pm that day. There is really no other possible cause for the injury. Mr Forlin suggested that Mrs Patel might have caught her finger in the wheel of the buggy, but there is absolutely no evidence to support that suggestion. Common sense dictates that that must have been how the accident was caused and, in my view, it was an irresistible inference which should have been drawn by the district judge. It is not a matter of assumption, as referred to by her, it is a matter of clear inference.

23. Turning to the second reason given by the district judge, namely that there was no evidence as to the reason for the door closing, that is true, but it was an irresistible inference from the evidence that the door should not in normal circumstances have come off its magnetic catch. It was only supposed to come off its magnetic catch if there was a fire. Mr Forlin suggested that the buggy might have touched the door, causing it to come off the magnetic catch, but there was no evidence that the buggy had touched the door, indeed the evidence was to the contrary. Mr Hennessy expressly stated that the buggy did not touch the door, and Mrs Puddick said that she did not remember seeing the buggy touch the sides as she walked behind it. She described the position of the buggy as being "pretty central".

24. On that evidence, the clear inference must be that the fire door closed when it should not have done so. In the light of the evidence that it was not caused by the buggy touching it, the precise reason for it coming off the magnetic catch, for instance a failure of the electrical circuit, does not affect the relevant conclusion, which must be that the door closed when it should not have done so.

25. So far as the third reason given by the district judge is concerned, namely that there was no evidence that the screw had been protruding immediately before or at the time of Mrs Patel's injury, the fact of the matter is that it must have been. Common sense dictates an irresistible inference to that effect. If it had not been protruding, Mrs Patel would not have caught her finger on it. It could only have been the screw which caught her finger. There was no evidence of any other possible cause. Although the investigation which discovered the protruding and bent screw did not take place until 4.39pm, there was no evidence that anything else had come into contact with the screw since the accident to cause it to become bent.

26. For all those reasons, there was, in my judgment, a clear prima facie case by way of inference from the primary facts, that the accident happened in the manner alleged by the prosecution. That, of course, is not the end of the matter because it is exposure to risk to health and safety that must be shown by the prosecution. However, the circumstances revealed by this accident, namely a fire door with a protruding screw on its push plate, which closes when it should not do so, provides sufficient evidence to constitute a clear prima facie case of exposure to risk. I therefore conclude that the district judge was in error in concluding that there was no evidence of exposure to risk.

27. As I mentioned previously, this court should be slow to interfere with the findings of the trial judge who heard the witnesses give their evidence. However, in this case the district judge failed to apply her mind to the obvious inferences to be drawn from the primary evidence, whereas if she had done so, the inevitable conclusion would have been that there was a prima facie case for the respondent to answer. In those circumstances, I am of the opinion that she erred in ruling that there was not a case to answer.

28. It follows that the answer to the first question in the case stated is "no". Both counsel agreed that the second question need not be dealt with in this appeal. However, if it had been necessary to deal with it, I would have answered it in the negative because the matters to which I have referred should inform the district judge's ultimate decision.

29. The only other matter which I should mention is that Mr Forlin submitted, relying on the case of Davies v Health and Safety Executive [2002] EWCA Crim 2949, that the prosecution have to show a prima facie case on reasonable practicability before the burden of proving the defence under section 40 arises. Mr Matovu submitted on behalf of the appellant that all the prosecution have to prove was that the defendant owed the duty, and that the safety standard had been breached.

30. That was, however, not an issue before the district judge. The parties dealt with the matter on the basis that the issue of reasonable practicability only arose if there was a case to answer. It does not, therefore, arise under the case stated. All I need say is that if Mr Forlin's submissions were correct, which I doubt, the evidence was such that there would still have been a prima facie case.

31. Finally, Mr Forlin submitted that if I were to allow this appeal, I should not remit the case to the district judge, firstly because it was clear from the last paragraph of the document containing the reasons for her decision that it would be an academic exercise because it was clear that she would dismiss the information in any event, and secondly because of the delay that there has been since both the date of the accident and since the date of the hearing.

32. I do not accept that submission. I have ruled as a matter of law that there is a case to answer for the reasons that I have given. The district judge will have to bear those reasons in mind when making her ultimate decision. Any issue of delay will be a matter for the district judge to consider if and when an application to dismiss for abuse of process is made to her.

33. My decision, therefore, is that this appeal is allowed and that the case will be remitted to the district judge.

34. MR MATOVU: My Lord, I seek an order for costs. Prior to the hearing of this matter last week, the parties did exchange assessments. I do not know whether your Lordship has those before you.

35. MR JUSTICE HARRISON: I have one here, but I do not think I have the other one.

36. MR MATOVU: May I hand up a copy of those.

37. MR JUSTICE HARRISON: The one I have is on behalf of Gatwick Airport Ltd.

38. MR MATOVU: My Lord, the distinction between them is that one relates to the costs up until you finished the hearing, and the second one, for the smaller amount, is just for the costs of today. That is how the second one comes to -- so that one is in the sum of £11,000-odd, and the other is in the sum of £873.75. I think there was some debate as to whether costs might be better dealt with by way of a detailed assessment, but I understand the parties were happy to have your Lordship assess them.

39. MR JUSTICE HARRISON: Unless there is any dispute of any significance, it is usually best for the matter to be dealt with by a summary assessment because it avoids a further hearing, which incurs further expense to the parties. So what you are asking for is an order for costs in the total sum of £12,325.83; is that right?

40. MR MATOVU: I have not done the mathematics.

41. MR JUSTICE HARRISON: It has to be done if an order is to be made. I have done it for you. Correct me if I am wrong in my arithmetic, but is that what you are asking for?

42. MR MATOVU: Yes, indeed, my Lord.

43. MR JUSTICE HARRISION: Thank you. What do you say about that, Mr Forlin?

44. MR FORLIN: My Lord, the only issue, if it is going to go for detailed assessment, is whether your Lordship would be minded to grant these costs out of central funds, or whether the respondent company should pay for them. May I just make this point, my Lord. There is precedent for this in the case that my Lord has already referred to, the David Janway Davies case -- I do not know if my Lord has the bundle still. It is our bundle, my Lord, at tab C, Davies v HSE [2002] on 18th December last year. It is not paginated, as you know, my Lord, because it is a transcript. If you go to the end of the tab and work back three pages, you will see about a quarter of the way down at paragraph 41, that Tuckey LJ says, "We have the short questions of costs to deal with." Mr Williams, for the appellant at that stage, hands in documents, as we have just done. Then, about halfway down, Tuckey LJ says to the Crown:

"What do you say? ... What about costs? I am absolutely staggered at what it is that you are seeking. I have to say I only looked at it this morning and I nearly fell off my chair, but perhaps that was an intemperate reaction."

The exchange continues:

"LORD JUSTICE TUCKEY: This is a point of very considerable importance to the Health and Safety Act in which no expense has been spared. Why should Mr Williams have to pay anything for your success?

MR NSUGBE: Well, my Lord, it was a very important question so far as the Health and Safety Executive are concerned.

LORD JUSTICE TUCKEY: It was bound to come from someone, and it had already come from somewhere else."

Then there is an issue about private funding or public funding, which does not apply here, my Lord. Then it goes on over the page:

"LORD JUSTICE TUCKEY: No one doubts it is an important point from the Health and Safety Act point of view. Anyway, I think I have the drift of your submissions ... Thank you very much. Mr Williams, we need not trouble you for about the application that is made against you ...."

Then there is the issue of public funding, my Lord, which is not relevant here. My Lord, you will see it is the RCDO, which is the old legal aid order.

45. MR JUSTICE HARRISION: What is this all about?

46. MR FORLIN: My Lord, the point I am getting at is that although the prosecution asked on the last page if -- I could just ask you to turn to the last page, my Lord. This is Tuckey LJ for an appeal sum.

"The Health and Safety Executive make an application for costs before the appellant become legally aided. They do so in the sum of over £50,000. That application is refused. We do not think, although they have been successful, that it would be reasonable to expect this appellant to bear costs of that or indeed any order in this case. This was obviously a matter which the Health and Safety Executive have considerable interest in. To that end they instructed two leading counsel, I think I am right in saying, and a Professor to advise them on the European Directive and so on and so forth. That was all no doubt money well spent in the wider interests, but it is not a cost which we think it would be fair for this appellant to have to bear ... We think he should nevertheless, from the financial information we have got, make some contribution towards his costs in this court and we assess that contribution in the sum of £5,000.

47. I make three submissions, my Lord. The first is that --

48. MR JUSTICE HARRISON: That case was a case of -- I have to remind myself what the case was about.

49. MR FORLIN: My Lord, to help you, I used it for two reasons. One was the reverse onus presumption point, whether reasonable practicability comes into the prima facie --

50. MR JUSTICE HARRISION: Was it a case stated?

51. MR FORLIN: No, my Lord, it was on appeal from the Crown Court on two points of law. The first was the reasonable practicability test, my submission to you, where I used paragraphs 7 and 8 of that authority to say whether reasonable practicability should be in the first limb, and secondly, when Tuckey LJ looked at reasons --

52. MR JUSTICE HARRISON: This was an individual, was it?

53. MR FORLIN: It was a company, my Lord, and an individual. There were two appeals linked, David Janway Davies , but I think, my Lord, it was a company -- I know I am right, my Lord, because at paragraph 2 it says:

"The appellant, David Janway Davies, was convicted on 7th September 2001 of an offence ... he was fined £15,000 and ordered to pay £22,544,32p prosecution costs."

54. MR JUSTICE HARRISON: It was an individual who was prosecuted.

55. MR FORLIN: I make three submissions, my Lord. The first is this -- if I could just do them straight away, my Lord, and then come back to them. The first is that any costs come out of central funds. The second is that no costs orders are made at all in relation to this hearing, that it goes with the cause of the trial because, as you are very well aware, my Lord, this matter has now been remitted back to the Magistrates' Court to start at the point of any application for abuse of process on delay and/or then on to the defence case. The third submission, my Lord, is that if you are minded not to be out of central funds, and if you are minded to make a ruling on costs to be paid as a result of this hearing, then it is not in the full order, although I completely accede to the fact that that would be dealt with at the detailed assessment point. Can I just say this --

56. MR JUSTICE HARRISON: I do not understand the last point. Is this a quantum point?

57. MR FORLIN: No, my Lord. It is a quantum point in terms of the detailed assessment, I am not arguing that. What I am saying in terms of out of central funds, the issue is -- my Lord has just given a very detailed judgment, he has ruled that the learned district judge erred in law. My Lord, we made that submission. The district judge upheld that submission. To what extent, my Lord, would it be right, in our submission, that we should pay in entirety for the erring of the district judge?

58. MR JUSTICE HARRISION: What was your third submission again?

59. MR FORLIN: My Lord, it is that. It comes back to the central funds issue, but it also comes back to the fact that any money that your Lordship was minded to impose on the defendant company after detailed assessment should be less than the prosecution is asking, not only on the basis of quantum, but on the basis of the fact that the learned judge erred in law, and the extent that we followed that now erring in law. We submit that it should not be falling on all of us, on the defendant company, to pay for the entire amount.

60. MR JUSTICE HARRISION: You say you should not have to pay the costs because the fault was the magistrate's; is that it?

61. MR FORLIN: Yes. There is one other matter, my Lord. What would be the position, my Lord, for petitioning the House of Lords?

62. MR JUSTICE HARRISON: Let us deal with costs first. As I understand it, you say that you should not have to pay the costs. They should be out of central funds, and one of the reasons for that is because it was the fault of the magistrates, not your client's fault. The second one is that any order for costs should be made at the end of the hearing before the magistrates. What do you say about that, Mr Matovu?

63. MR MATOVU: My Lord, my learned friend seeks to rely on the fact that a different order than that which I seek was made in the case of Davies . My Lord, Davies is wholly distinguishable from the present case. Davies was the first case to deal with the construction of section 40 under this health and safety legislation, and that is why it was obviously a matter of great importance for all prosecutions right across the board in relation to these offences, as it dealt with a matter of such fundamental importance as to whether section 40 was in breach of article 6 of the Human Rights Act with regard to the reverse burden of presumption of innocence. That is why the Crown in that case hired two leading counsel and the professor and so on. That is not this case. This case is not one of principle. It is one of simply applying the law, the existing established law, to the facts of the individual case. Again, another factor which obviously persuaded the Court of Appeal in Davies is the fact that the prosecution was brought against a private individual, who did obtain legal aid assistance prior to the actual hearing. So it is weighing up on the one hand a prosecution, a very expensive one, brought very much in the public interest, and asking why should this particular private individual have to foot the bill.

64. MR JUSTICE HARRISON: Was he legally aided?

65. MR MATOVU: He was legally aided for the hearing. The issue at the very end was how much --if my Lord looks at the end of the judgment of Tuckey LJ, the last page. At the top of the page are the words "before the appellant became legally aided". Do you see those words? So there was an application in relation to costs incurred before he became legally aided.

66. MR JUSTICE HARRISON: Thank you very much.

67. MR FORLIN: My Lord, there was an insurance funded case at trial. Mr Williams deals with that on the penultimate page in the middle:

"I think I should be entirely clear with your Lordships. At the trial below he had the benefit of an insurance policy so they founded his own legal expenses."

68. MR MATOVU: As I say, my Lord, this case is very different. This is a straight issue, as it were, between the respondent before you and the appellant before you. To say that they should not pay the costs because the district judge erred is, in my submission, a wrong basis upon which to exercise your discretion because the matter has been strenuously brought by the respondent. They are the ones who raised the issue. Your judgment has made it clear that the evidence showed a clear prima facie case. They have initiated this whole argument, and they have lost. Just for those simple reasons, costs should follow the event.

69. MR JUSTICE HARRISON: Thank you very much. I am quite satisfied that this is a case where costs should follow the event. Mr Forlin has submitted that their costs should come out of central funds, primarily because the fault is that of the magistrate rather than the respondent. Secondly, he says that the question of costs in any event should be part of the trial which has yet to be concluded. I do not derive any assistance from the case of Davies v HSE , to which I have been referred. That is, as Mr Matovu correctly says, wholly distinguishable from the present case. That case involved the construction of section 40 of the 1974 Act, and the applicability or otherwise of article 6 of the convention in relation to it. It involved a very important principle of law, whereas this case does not. This case involves the application of law to the facts as found. Also, the circumstances of the appellant in the Davies case are very different from the circumstances of the appellant in this case, who is well able to pay any order of costs. The fact that the fault is the magistrate's is not to the point because the magistrate was acceding to the submissions that had been made to her by the respondent. The respondent saw fit to contest this case, and I see no good reason why they should not pay the costs.

70. Now, is there any dispute as to the quantum of costs? No? Whilst, of course, I will listen to anything, Mr Forlin, I should put you on notice that I have your side's assessment of costs, and I see they are almost double the amount of the appellant's costs, so you might be in a difficult position. I will make an order that the respondent pay the appellant's costs in the sum £12,325.83.

71. Now, Mr Forlin, you have another point?

72. MR FORLIN: My Lord, just out of courtesy to your Lordship, on the last occasion, bearing in mind we were not sure who could be here today, I took the liberty of just raising out of courtesy and politeness with you in advance, if I could not be here, the issue of petitioning to the House of Lords. My Lord, I have looked up the law -- it is very unusual, but this is subject to what is called the "leapfrog" procedure. For your Lordship's note, it is the White Book, Volume 2, page 931:

"An appeal lies to the House of Lords only with the leave of the court below or of the House. In criminal causes, an appeal lies to the House of Lords at the instance of the defendant or prosecutor."

If my Lordship just scans his eye down the page. Then, my Lord, if you look at the bottom of the page, if you would be so kind:

"Certificate of a Point of Law

"Leave to appeal in a criminal cause or matter will only be granted if it is certified by the court below that a point of law of general public importance is involved in the decision of that court, and if it appears to that court or to the House that the point is one that ought to be considered by the House."

73. Then, my Lord, the time limit is -- you see on page 932 at 4B-5:

"Application for leave to appeal to the House of Lords must first be made to the court below. Such application must be made within a period of fourteen days beginning with the date of the decision of the court below."

That would be today, my Lord.

74. So, my Lord, just out of courtesy, on the basis that I was not going to be here, I asked your Lordship whether he could give us some time to digest and read the learned judgment which you have just handed down this morning. The law does say I have 14 days from today to do that, my Lord. I will not be making any application today, I just wanted to point that out out of courtesy, as I raised it last Wednesday, my Lord.

75. MR JUSTICE HARRISON: If you are minded to make an application, how do you intend to go about it?

76. MR FORLIN: My Lord, my understanding is that it can be done either in writing or it can be done orally. If we were going to make it, subject to instructions, of course, costs have a big part to play, my instinct would be if I was going to make it at all, that it is made orally. So it would have to be an appeal within a period of 14 days from today. Then I presume, although I do not know, my Lord, it would have to be listed as soon as possible thereafter for the issue to be argued and for my Lord to deliberate and give ruling upon whether he would certify this to the House of Lords.

77. MR JUSTICE HARRISION: I suppose it is up to you to decide whether, and if so how, you make your application.

78. MR FORLIN: I am obliged, my Lord.

79. MR JUSTICE HARRISON: I obviously do not make any decision on it at this stage without having heard the reasons for the application. Just looking at the provisions to which you have referred me, I would have thought that you should not necessarily feel optimistic in making the application. You have a right to make it if you want to make it and I will approach it with a open mind.

80. MR FORLIN: I am obliged, my Lord. I am referring your Lordship to the matter because I raised it on Wednesday.

81. MR JUSTICE HARRISION: That concludes everything, does it not? Thank you very much.