F, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE DAVIS: On 10th January 2002, the applicant obtained an urgent injunction from Andrew Smith J restraining the removal of her from the United Kingdom to Portugal, the applicant at that stage being detained, an order for removal having previously been made. Pursuant to an undertaking given to Andrew Smith J, the application for judicial review concerned was lodged the following day on 11th January 2002.

The matter came for consideration on the permission stage by Elias J on 19th March, when it was adjourned pending consideration of fresh medical evidence adduced in respect of the defendant. In due course on 15th May 2002, permission was refused on the papers by Elias J.

The applicant, as was her right, then renewed her application for permission and after an oral hearing, permission was granted by Sir Richard Tucker on 4th July 2002. The matter was intended to come on for hearing during November 2002, but by consent it was adjourned. The matter was then scheduled to come on for hearing on 17th January 2003. In the event, the Secretary of State served a lengthy and detailed witness statement by Mr Richard Pulham on 10th January 2003 and subsequently an application was made for the adjournment of the hearing listed in the event before Wilson J on 17th January 2003, the time estimate being one and a half days.

At that hearing, Wilson J ordered that the hearing of the claim be adjourned to the first available date after 14th February 2003 and that the matter be expedited. He ordered disclosure of certain documents by the defendant relating to the claimant and relating to the decision to detain her on 8th December 2001 and subsequent review; ordered disclosure of certain letters from the defendant to the Portuguese authorities; ordered that the claimant provide to the defendant her consent for the disclosure of all medical reports, and at paragraph 5 ordered this:

In the event, the defendant, Secretary of State, did not serve the material in question until on or around 18th February 2003 -- possibly a day or two earlier -- but it seems only coming to the attention of the solicitors on that date. The disclosure was quite bulky, comprising some 300 documents.

In due course, as I was told by Miss Harrison today, the applicant was herself interviewed on 27th February 2003. It is said that the applicant is in a very distressed state indeed and suffers from a depression (which perhaps is scarcely surprising given what is said about her treatment in Angola).

This morning, there has in fact been lodged with the court an unsigned draft witness statement on behalf of the applicant -- a lengthy document -- and it is perhaps a little surprising that no such witness statement from the applicant was obtained at the very outset of this claim.

But be that as it may, Miss Harrison today applies for a further adjournment. She says that her side has not had sufficient time fully to digest the 300 or so documents that have been served pursuant to the disclosure order and in particular what she says is that these documents, and the matter generally, need to be put before an expert doctor -- the choice being a Dr Turner -- to consider the position with regard to the applicant's treatment when she was ordered to be detained and then when she was detained.

Miss Harrison told me that at the hearing before Wilson J she had anticipated that they could go back to a Dr Seltzer, who had previously been involved (indeed, a quantity of medical evidence with regard to the claimant had previously been put in). In the event, as I was told, Dr Seltzer indicated that she did not consider it part of her remit to undertake the kind of exercise that was being sought. That is unsatisfactory, and it is unsatisfactory this was not ascertained earlier. Therefore, the applicant turned her attention to Dr Turner, who is said to be very expert in this field. Dr Turner has indicated that he would not be able to interview the applicant before 9th May 2003. Miss Harrison accordingly says that the interests of justice require an adjournment because it is only right, she says, that the applicant should be able to have access to Dr Turner and indeed also perhaps to put in further materials by reference to the disclosure that has taken place.

Miss Harrison further says that no prejudice will be caused by such adjournment because the applicant has been released from detention. She currently has a section 65 appeal which clearly will not take place before May or June of this year at the earliest. Therefore, no prejudice is caused to the Secretary of State in that regard.

On behalf of the defendant, Mr Underwood QC submits that this case is becoming a "running sore", as he puts it. He asserts at this stage, although I do not think I can have regard to it, that in the light of the evidence this claim is utterly without foundation: I really do not think I can have regard to that assertion on considering the question of an adjournment. He goes on to submit that there is no reason why the claimant was not ready. Even if this bundle of documents was not served as quickly as had been contemplated by Wilson J, it was served on 18th February and the applicant has had over three weeks to prepare herself.

He further says that no advantage will be gained by an adjournment and it was never contemplated that the applicant would be able to engage in an extensive further medical exercise of the kind now mooted and the matter can properly go ahead today on the materials that are currently available. He also points out that no amended skeleton has been put in to show how the court should treat any discrepancies between the medical state of the applicant and the medical evidence available to the Secretary of State during the detention.

It does seem to me that it cannot be said that no prejudice is caused if there is an adjournment. Clearly there will be an element of costs here which will be thrown away and which in practice will never be recoverable. Furthermore, this is the kind of case which involves allegations against the Secretary of State concerning alleged wrongful detention, and indeed a claim for damages. Therefore, this claim has been hanging over the head of those involved in what may be inferred to be a rather unpleasant way, because serious allegations are made.

Furthermore, this court must have regard to the overriding objective. This matter was listed -- and indeed, as directed by Wilson J, listed for the matter to be heard with expedition -- to come on before this court at a one and a half day hearing. This court has to consider the interests of justice generally and that includes consideration of other litigants who use the court and who by reason of the listing of this matter will have had their own cases put back for hearing.

I further take the view, with all respect to Miss Harrison, that these proposals to go to Dr Turner are somewhat speculative. Quite how that proposed evidence would bear on the issues which this court needs to decide was by no means made obvious to me by Miss Harrison. It certainly does not seem to have been contemplated in any significant way before Wilson J that there be such further medical evidence and certain it is that he made no direction that there be any further medical evidence. At the moment it does not seem to me that in any significant way the applicant's position would be undermined by refusing to grant the adjournment as sought for the purpose sought. The explanation given is not satisfactory, and in my view the claimant has had sufficient time to prepare for this hearing.

Weighing all the competing submissions and arguments and bearing in mind also that these judicial review proceedings have now been extant for over 14 months, I have come to the conclusion that, as a matter of fairness and justice, this application for an adjournment should be refused.

MISS HARRISON: My Lord, in the light of that judgment, it is necessary for me to take instructions from my instructing solicitor.

MR JUSTICE DAVIS: How long would you like?

MISS HARRISON: No more than ten minutes, my Lord.

MISS HARRISON: My Lord, I am grateful for that time. That was in order to confirm instructions.

My Lord, my application is that we make a request in light of your Lordship's decision to refuse the adjournment for the case to be transferred to the Queens Bench Division of the High Court. My Lord, I make that application on the basis that we are of the view that in light of your Lordship's refusal to grant an adjournment that we are not in a position properly to advance our client's case on the basis of the evidence that is now before the court.

We can only advance a fall back position, which is to ask your Lordship to make an order for transfer under CPR 54.20.

MR JUSTICE DAVIS: So you are getting an adjournment by other means?

MISS HARRISON: My Lord, I am putting it to you on that basis.

MR JUSTICE DAVIS: You are in a position to advance your client's case.

MISS HARRISON: My Lord, I am making the application. My advice is and on the basis of my instructions, that is the position that we take, that we are not in a position to advance the client's case and so make that application.

The alternative, my Lord, is that we would withdraw the application.

MR JUSTICE DAVIS: Right.

When you say "transfer", I could reconstitute myself as the Queens Bench here and now. You mean transfer to put off for a trial and then further evidence going in and things like that?

MISS HARRISON: My Lord, yes. It would be as if the --

MR JUSTICE DAVIS: I can sit as a Queens Bench Division judge right now. Indeed if it were transferred, I would probably retain it to myself anyway.

MISS HARRISON: My Lord, we say that there would be different proceedings with different principles if your Lordship were concerned essentially with a false imprisonment claim or claim for damages under the Human Rights Act.

MR JUSTICE DAVIS: That I can see, because some of the issues here would involve the examination of witnesses.

MISS HARRISON: Yes, my Lord.

MR JUSTICE DAVIS: But that is not the procedure that has been adopted.

MISS HARRISON: No so far, my Lord, because as is clear, up until January when the evidence was finally served, we proceeded on the basis that we had a case where there was effectively no dispute because no evidence had been put in. The Secretary of State then did put in further material challenging a number of aspects of our case. We have sought to respond to that.

I appreciate your Lordship has made a judgment about whether we have been able to do that in the time. Our view is that we have not and that the kinds of investigation that would be necessary properly to do justice to this case we say is in the context of a civil claim and not judicial review.

So it is a fall back position, my Lord, on the basis of the decision that you have made and I anticipate, and your Lordship has already indicated, that it is a way around the order that your Lordship has made, but it also reflects our recognition that in the absence of material that we do think is relevant and necessary, a different kind of enquiry is required to deal with this case, which would be much more muscular on the facts and investigations on the facts, with judgments actually to have to be drawn about the nature of the treatment and including the nature of the advice that was given by the medical doctors.

Putting it this way, on the basis of indications that we have given, there are questions about the efficacy of a decision to detain a person in order to treat them with drugs so that they can then be removed. That is only putting it in those terms. I do not have Dr Turner's report, so I am not able to advance it any further to your Lordship than in that way, but it is on that basis --

MR JUSTICE DAVIS: Would that involve questions of negligence?

MISS HARRISON: My Lord, it may well do. We do not know because we have not seen Dr Turner's report.

MR JUSTICE DAVIS: The close attention here ought to be: how did the position seem to the Home Office at the time? It is no good if Dr Turner says: "I would not have done this myself".

That advances the argument not at all.

MISS HARRISON: I accept that, my Lord. The question would have been whether or not the treatment of the claimant was of a reasonable standard and looking at the purpose for which the treatment was administered, which included making her physically able to be removed.

MR JUSTICE DAVIS: If the question is that the treatment was not of a reasonable standard, that seems to me to raise issues that are quite different from that which are currently being pursued.

MISS HARRISON: Yes, my Lord. I accept that, my Lord. I am indicating to you that this is in part -- we do not know and we have only had an indication to as to what Dr Turner's opinion would be. Your Lordship does not have that evidence and it will not be put before this court under the application for judicial review.

MR JUSTICE DAVIS: Miss Harrison, putting this on a wider and a more human basis -- and I may be wrong and you and your solicitors will have to question it -- do you regard it in human terms in her interests to have to go into the witness box and recount in public what happened to her during detention, to take witness statements from the her and interview her at length, when she has to face the section 65 appeal?

MISS HARRISON: Yes.

MR JUSTICE DAVIS: Do you think in human and psychological terms that will advance her interests?

MISS HARRISON: My Lord --

MR JUSTICE DAVIS: Never mind the cold legalities of this matter.

MISS HARRISON: My Lord, our instructions have been that the claimant's experiences in detention were of such a nature that they caused not only her mental health to deteriorate, but to the extent that she was threatening to harm her children. The fact that she went through that experience is of great distress to her and is, as I understand it, the reason why she wished to continue to pursue with these proceedings.

We have spent time in making it clear what is involved and we have only ever acted on instructions.

MR JUSTICE DAVIS: Of course, Miss Harrison. You are best equipped to know the position, but one wonders.

MISS HARRISON: My Lord --

MR JUSTICE DAVIS: There it is.

MISS HARRISON: -- I can only deal with the situation as it has now been presented to me.

MR JUSTICE DAVIS: Of course, I do understand that.

MISS HARRISON: My instructions are that, if it were possible, she would want to pursue this case. My position frankly is that it is not possible to do that in the context of these proceedings in light of the evidence that is now before the court. I can only ask to preserve her position for your Lordship to do what I have asked, which is for the case to be transferred so that the matter be dealt with as if it were being done effectively by writ. The rules make provision for that.

We say that the factual questions now more properly require the investigation that arises in the context of a civil claim, rather than on judicial review, but if your Lordship is opposed to that course of action, then I am afraid that my instructions then are to withdraw.

MR JUSTICE DAVIS: Yes, I will rule.

A few minutes ago, I rejected Miss Harrison's application to adjourn this matter for the reasons that I gave. Those reasons reflect my view of the justice and fairness of the case, considering the interests of both parties, as well as the interests of the administration of justice, and I formed the view that the applicant here had had sufficient time to address the materials disclosed by the defendant, amongst other reasons.

Having made that ruling, Miss Harrison very understandably asked for an adjournment to take stock and now she has made an application that this matter now be transferred to the Queens Bench Division on the footing as it were that it is deemed to be a matter commenced by writ. I did not understand Miss Harrison seriously to dissent from my putting to her that in effect she was seeking by that route to obtain an adjournment by other means.

Miss Harrison says that the issues here potentially involve issues of fact and indeed it sounded from some of the things she said that she is almost shaping up for a kind of negligence action, whereby her doctors perhaps -- we do not know -- might say that what the Home Office and their medical advisers did at the time were things they should not have done.

The fact remains these proceedings, raising all these claims, including claims for damages, as well as conventional judicial review, have been extant for 14 months. It has never before been suggested by the claimant that this matter should be treated as though commenced by way of writ and it seems to me wholly wrong in the circumstances to transfer this matter now in the way Miss Harrison now seeks, and I therefore refuse so to do.

MR JUSTICE DAVIS: Now, Miss Harrison.

MISS HARRISON: My Lord, in those circumstances, my instructions are to withdraw the application.

MR JUSTICE DAVIS: I am not sure that I am prepared to allow you to withdraw because that would mean that you could simply raise all these allegations again possibly in a writ action. I may be minded to dismiss, which would mean you could not raise these points potentially in a fresh action.

You are entitled to go ahead and you have my view that you have materials on which to go ahead; whether they succeed or not, I do not know.

MISS HARRISON: Yes, my Lord.

MR JUSTICE DAVIS: But please be clear that I am not receptive to an application to withdraw if that is simply a means by which you issue a writ claiming effectively all this relief over again in another form.

MISS HARRISON: My Lord, in terms of --

MR JUSTICE DAVIS: Would you like to consider the matter, because you are in a position to go ahead today? You may have wanted Dr Turner's report -- whatever it may or may not have said -- but you have materials and some of the points are points of law, but I am not happy about your withdrawing if that means you can simply come back in another forum raising the same allegations.

MISS HARRISON: My Lord, whether or not they would be the same allegations may well depend upon whether a report is able to be commissioned from Dr Turner. Obviously, there would be a question of legal aid.

MR JUSTICE DAVIS: Would you like time to consider the position again, because at the moment if withdrawal simply means that you can resurrect the claims that have thus far been advanced in these proceedings, then withdrawal at the moment does not commend itself to me?

You appreciate the distinction between dismissal and withdrawal?

MISS HARRISON: My Lord, except for -- and I have not given particular thought to it, and clearly it is a matter that is in your Lordship's mind -- I do not know whether you can actually bind any other court in a different jurisdiction bringing other claims by dismissing this application for judicial review.

MR JUSTICE DAVIS: If I dismiss it, I think you may find it could have -- and I am not saying I cannot, and I would not try to -- but withdrawing might mean that there would be no technical obstacle, and my view is you have materials which you can advance today. If you choose not to do so, I am very reluctant to let as it were myself to take steps which means that you have a free hand to advance these matters again on another occasion.

You have the points. You can run them before me today.

MISS HARRISON: Yes, my Lord, and obviously I can make --

MR JUSTICE DAVIS: At the moment Mr Underwood's assertions that there is nothing in them -- I am not the slightest bit moved by that. You have your points and you are entitled to have a run at them.

MISS HARRISON: My Lord, I appreciate that, but obviously we have to make --

MR JUSTICE DAVIS: You may be right.

MISS HARRISON: -- an assessment about the prospects of success in the context where it may well be that this claimant has another remedy in a different forum which is --

MR JUSTICE DAVIS: Would you be seeking damages almost certainly in the Queens Bench Division?

MISS HARRISON: Yes, my Lord.

MR JUSTICE DAVIS: This is the claim that you have here.

MISS HARRISON: Yes, my Lord, in the context of a judicial review, where there are factual disputes that the court's jurisdiction is more limited to deal with than in the context of the claim for false imprisonment.

In my respectful submission, it would not be appropriate for the court to take a pre-emptive step to shut the claimant out. She would be entitled to take advice on whether or not in light of any further evidence she has such a claim, and in my respectful submission, it would not be appropriate for the court to seek to shut her out. I do not know what that advice would be.

MR JUSTICE DAVIS: I am not seeking to shut her out from fresh claims she may wish to bring. All I am saying is, in so far as she makes these claims in these proceedings, now is her chance to argue them in these proceedings.

MISS HARRISON: Yes, my Lord, and my instructions are to withdraw from these proceedings.

MR JUSTICE DAVIS: You need my consent to that.

MISS HARRISON: Yes. I appreciate that, my Lord.

MR JUSTICE DAVIS: Do you consent to a dismissal?

MISS HARRISON: No, my Lord.

MR JUSTICE DAVIS: No.

MISS HARRISON: No. We seek to withdraw.

MR JUSTICE DAVIS: If I am not prepared to order a withdrawal, then what?

MISS HARRISON: My Lord, then --

MR JUSTICE DAVIS: Are you going to argue the matter in front of me?

MISS HARRISON: The substantive merits -- I would probably need to take instructions, but the indication I give to the court is: no, I am not prepared to argue the case on the basis that my position is that we are disadvantaged by the absence of the material that we consider to be necessary in the light of your Lordship's judgment.

MR JUSTICE DAVIS: Some of the points you are raising do not depend on Dr Turner's report. We do not even know what it might say. They do not necessarily depend on it at all. They are points of law here.

MISS HARRISON: They are points of law, my Lord, but clearly dependent on the factual premises and factual bases, and my Lord, all I can say is that my instructions are to withdraw the application and that is the only submission that I make before the court, that that is what we would seek -- to withdraw.

MR JUSTICE DAVIS: Would you accept that in doing that you seek to withdraw it so you can argue all these points, as well as any other points, over again in some other Division?

MISS HARRISON: No, my Lord, not for that express purpose. We primarily seek to withdraw because of our assessment of the prospects of success in light of the state of the evidence.

MR JUSTICE DAVIS: Right.

MISS HARRISON: We would wish to preserve the claimant's ability to take further advice, dependent on other evidence, as to whether she has any other alternative remedies.

MR JUSTICE DAVIS: You mean, for example, negligence?

MISS HARRISON: Yes, my Lord, which obliviously could be --

MR JUSTICE DAVIS: That is quite different from what is alleged on the face of it.

MISS HARRISON: Yes and so it is not in order to be abusive of the court's proceedings.

MR JUSTICE DAVIS: No, I do not think that. That could not be shut out, nor should it be, but it is the issues that are raised here.

I will hear Mr Underwood.

MR UNDERWOOD: If and in so far as different issues might be raised after this which could properly have always been raised in the Queens Bench Division, then that may be proper. It remains to be seen what they are.

If and in so far as the claimant would seek to raise in the Queens Bench proceedings matters which could and should have been raised before your Lordship today, we would say that would be an abuse.

My friend has made it entirely plain that she thinks she will lose if she goes ahead today. She has done that in the face of a perfectly clear ruling, if I may say so, from your Lordship that your Lordship takes the view that they are ready to go ahead.

It is a matter for her, we say, and we would not insist that your Lordship would dismiss the claim necessarily, rather than allow it to be withdrawn, because on what we have heard passing between your Lordship and my friend, we would make a claim -- or an assertion -- that any claim attempting to raise these issues in another forum would be an abuse in any event, whatever your Lordship's ruling on the withdrawal.

MR JUSTICE DAVIS: If that were, then that would be a matter for the judge at the hearing.

MR UNDERWOOD: Precisely, but what I am saying is --

MR JUSTICE DAVIS: My concern is this, and it is more on a technicality: there is a distinction between withdrawal and dismissal.

MR UNDERWOOD: There is. I accept that, but my Lord, my friend has made it entirely plain she is withdrawing because she will lose and your Lordship has made it entirely plain to her that you have not decided she is going to lose.

MR JUSTICE DAVIS: Absolutely not. Absolutely not. She might win.

MR UNDERWOOD: She can have no better opportunity and this will all go on record and, my Lord, it will go in front of some unfortunate Master or Judge if another claim is brought.

So, so far as the technicality is concerned, I would respectfully say that it would not matter whether it was withdrawn or dismissed.

MR JUSTICE DAVIS: Take discontinuance?

MR UNDERWOOD: Effectively, withdrawal is discontinuance.

MR JUSTICE DAVIS: Discontinuance does have different connotations from dismissal.

MR UNDERWOOD: It does, but technically, of course, it is not quite discontinuance in the sense of re-fighting the same claim.

The question is whether it would be an abuse to start again matters which could and should have been tried before your Lordship.

MR JUSTICE DAVIS: Would you accept that, for example, if -- and, of course, we do not even know what Dr Turner might or might not say. He might say: "I would not have done this myself, but I cannot criticise it" -- I do not know.

But supposing hereafter there were to be a claim in negligence, and that is not the subject matter -- or is it? -- of these proceedings, you could not have a negligence claim in this court. The background facts --

MR UNDERWOOD: My Lord, it is very much the same, as they are saying in this case, that the decision to detain in all the circumstances was irrational.

In addition to irrationality, they would have to establish a duty of care in a negligence claim. To that extent --

MR JUSTICE DAVIS: What does the White Book say about withdrawal? Obviously, withdrawal in judicial review is quite common.

MR UNDERWOOD: Yes.

MR JUSTICE DAVIS: It is not so common in the context of civil claim actions.

MR UNDERWOOD: It sounds more like a nonsuit, does it not, in civil?

MR JUSTICE DAVIS: The index does not help.

MR UNDERWOOD: No. I am just looking at Part 54 itself.

No. There is nothing in 54 either, my Lord.

My Lord, all I am suggesting is that your Lordship should not be too troubled about the technicalities because it sounds, if I may say so, as if we will be arguing an abuse somewhere else and the question is not too much what was --

MR JUSTICE DAVIS: I do not like to be troubled by technicality. The point is that these issues are before me. Miss Harrison is in a position to advance them before me, and maybe she thinks not as well as she could if she had had the report of Dr Turner, but nevertheless she is in a position to advance the arguments and she could succeed on them, but you are not troubled by a withdrawal or dismissal?

MR UNDERWOOD: No, because if the matters are sought to be re-litigated, we would say they are an abuse.

MR JUSTICE DAVIS: There you are.

It does not look as if -- perhaps I am thinking more of wearing my Queens Bench Division hat -- and I say this for the record, Miss Harrison, and I will say this more formally in due course, that you are in a position to pursue your case today; you may think not as well as you might have been able to, had you had Dr Turner's report, but you are in a position to advance your case today. You have the materials to do so and that will be a matter of record.

MISS HARRISON: Yes, my Lord.

MR JUSTICE DAVIS: Do you want more time to consider this? I really do not want to be party to anything that you might say hereafter you wish you had had more time. Are you happy to take your stance?

MISS HARRISON: Yes, and if your Lordship records the basis in the way that your Lordship has said, rather than the way in which my learned friend has said it, which is my assessment of the merits, I am happy for your Lordship and could not have any objections to your Lordship in putting formally on the record the position as you have just described it to me.

MR JUSTICE DAVIS: So by consent this claim is to be withdrawn.

MISS HARRISON: Yes, my Lord.

MR JUSTICE DAVIS: You are agreeable to that course?

MR UNDERWOOD: We are neutral to this course. I am not consenting, but it is a matter for my learned friend.

MR JUSTICE DAVIS: She is stating that she wishes to withdraw the claim.

MR UNDERWOOD: Yes, because I will be asking for costs.

MR JUSTICE DAVIS: Let us deal with this.

You heard Mr Underwood about costs. Do you factor that into your thinking as well? He offers no order as to costs. You are willing to accept the possibility that you may have to pay costs?

MISS HARRISON: If he is going to -- it depends on what application.

MR JUSTICE DAVIS: You have full legal assistance in practical terms.

MISS HARRISON: That is right and I am going to oppose a costs application, but your Lordship is going to make a judgment about that.

MR JUSTICE DAVIS: This procedurally is becoming a little odd.

Miss Harrison now tells me on instructions that she wishes to withdraw this claim in consequence, as she says, of my refusal to grant an adjournment of it. I wish to make absolutely clear, as I think I have already made clear, that notwithstanding my refusal to grant the adjournment, Miss Harrison is free to advance, and in a position to advance, the claims currently raised in these proceedings. If the applicant does not wish to pursue these claims, then that is a matter for her and the consequences of her seeking withdrawal will I think be plain; but given that the applicant does not seek to advance this claim any further, and given that Mr Underwood, on behalf of the defendant, is not troubled by any potential distinction between dismissal and withdrawal in this particular context, I am prepared to permit the claim to be withdrawn, as Miss Harrison has expressly asked.

I say this to make absolutely clear: if there is an attempt to resurrect matters which are the subject of these claim forms, that any subsequent court which has to deal with them knows that this applicant had the chance to argue these claims in front of me at this hearing and has by choice foregone that.

Mr Underwood, you have an application for costs.

MR UNDERWOOD: My Lord, I do. This curious procedure at least has this in common with the (inaudible) the claimant came to court and has thrown away the chance and ought to bear the costs.

Of course I accept that she, being legally aided -- they are going to be unenforceable against her, but that is my application.

MR JUSTICE DAVIS: Miss Harrison.

MISS HARRISON: My Lord, I make my objections shortly because I anticipate that your Lordship is going to rule, but we say that we have been put in this position because the history of events is that we were served very late with material on two occasions, which resulted in us, we say, not being in a position properly to advance our client's case and we say there should be no order for costs.

MR JUSTICE DAVIS: I think in the circumstances, and given that the applicant has chosen to withdraw this claim, the right order is that there be costs in favour of the defendant. There will, of course, be the usual provisions relating to a legally assisted claimant and obviously you should have an assessment order for yourself.

MISS HARRISON: Yes, my Lord, a detailed assessment of the claimants publicly funded costs.

MR JUSTICE DAVIS: Right. There is nothing I can do with regard to the section 65 appeal, because it is not right that this should be hanging over the head of this particular applicant.

MR UNDERWOOD: The appeal was only made on 28th February. It is at a very early stage.

MR JUSTICE DAVIS: Right.

MISS HARRISON: If it can be swiftly processed -- it is a matter in the provisions of the Home Office now -- and obviously we would be very grateful for any steps --

MR JUSTICE DAVIS: I hope, in fairness to this particular applicant, and indeed to the three children, that this can be done.