S, R (on the application of) v Education (Waltham Forest)

MR JUSTICE UNDERHILL: The claimant is a child now aged 16. He is severely autistic. By these proceedings, which he brings by his father as his litigation friend, he challenges the decision of the defendants not to provide him with transport to his school. Somewhat unusually, the claimant's father, who acts in person but is a solicitor by profession, has made no application for an order under section 39 of the Children and Young Persons Act 1933, or under CPR 39. He takes the position, which I respect, that no shame should be attached to his son's condition and that since the case involves no other confidential information about him and there is no respect in which his interest could be damaged by publication of the proceedings, no order designed to procure privacy or anonymity would be justified. The defendants do not regard it as their role positively to seek such an order, but Mr Knafler, who appears for them, has on instructions told me that it is their view that such an order ought to be made in order to protect the confidentiality of a child in all cases such as this. I consider that on balance I ought to make an order that these proceedings be reported in such a way as not to identify the claimant; and for that purpose I will refer to him in this judgment as "W", to his father and mother as "Mr and Mrs S", and to his sisters, who feature briefly in the evidence, by their initials. The general practice of the courts in cases of this kind reflects a realistic and proper assessment that in the case of a child even matters which are not specially confidential or damaging ought not to enter the public domain where there is no special public interest in their doing so.

The circumstances giving rise to the proceedings can be summarised as follows.

It is Mr S's case on behalf of W that the defendants' decision of 31st August, confirmed by the Transport Appeal Panel, is unlawful and that the defendants are obliged to provide not simply "transport assistance" of the kind offered but actual transport. His primary position is that the arrangements which were in place prior to the summer of 2005 should be restored, but he says that he is willing to consider other arrangements such as shared transport if they are judged by the defendants to be practicable.

These proceedings were commenced on 13th October 2006. They have been treated as very urgent because although there have been other issues which have prevented W returning to school at Whitefield, it is Mr S's position that those issues were likely to be resolved in the near future, at which point the question of transport would become critical. In those circumstances Dobbs J was prepared on 25th October to grant permission without sight of an acknowledgment of service from the defendants, and the matter came before me on 15th November. The speed with which the application has come on has created some difficulties for the defendants in preparing their evidence and submissions, which I have been asked to bear in mind in assessing them.

I should start by setting out the statutory background to the rights claimed on behalf of the claimant.

Section 509 of the 1996 Act, as originally enacted, was, so far as relevant, in the following terms:

The defendants have published a transport policy statement pursuant to section 509AA. The statement includes a section headed "SEN Transport Policy and Eligibility Criteria" which is plainly intended to satisfy their obligation under section 509AB. The relevant terms of the policy for present purposes are as follows:

The drafting of that policy is not particularly tight, but its overall effect is clear. In the case of a child with special educational needs the defendants have under the policy a discretion but not an absolute duty to provide what is described as "transport." "Transport" will be provided to pupils who are "eligible" according to the criteria set out in section 2; but it is clear from paragraphs 3.6 to 3.11, and in particular from paragraph 3.10, that "transport" may be provided not only in the form of actual transport (that is, a school bus or private hire vehicle) but in the form of "transport assistance" such as bus passes or escorts or, as in the present case, an allowance to cover the cost of fuel for parents driving their children to school. Actual transport and in particular transport in the form of the provision of a private hire vehicle, are only to be provided where the other forms of assistance are judged to be inappropriate. By paragraph 2.4 those policies apply equally to a child over 16, subject only to the gloss, which is of doubtful relevance in W's case, that independent travel skills will so far as possible be encouraged.

I believe that that policy, having those characteristics, complies with the requirements of sections 509AA and 509AB. The arrangements which an authority is required to have and to specify in its policy statement are arrangements which facilitate the attendance of sixth formers at school "by the provision of transport or otherwise" (emphasis added) within the meaning of subsection (2) or for "financial assistance" within the meaning of subsection (3). Mr Knafler submitted that transport assistance of the type covered by the defendant's policy as set out above, and as offered to W in this case, plainly falls within the phrase "or otherwise". Subject to one point which I mention below, that seems to me to be right - the phrase is entirely apt to cover circumstances in which arrangements are made which will facilitate the attendance of a child at school otherwise than by the provision of actual transport. Mr S, however, submitted that the phrase "or otherwise" referred only to arrangements additional to the provision of transport, such as escorts to travel with children. That might be a possible argument - though I am bound to say I doubt it - if the phrase were "and otherwise" (as in fact it is in section 509), but I do not think that it is arguable on the words actually used in section 509AA: "or" means "or".

My only concern about accepting Mr Knafler's submission is that if it is correct I am not sure what role is left for subsection (3), which requires the authority to specify arrangements for the provision of "financial assistance in respect of travel expenses". On the face of it, the provision of what I have been calling "transport assistance" falls more obviously within subsection (3), which I note is not expressly referred to in section 509AB. My attention was not drawn to this provision in the course of argument and my views about it must accordingly be somewhat tentative, but I can see no reason why there should not in fact be an overlap between the two provisions. In any event, however, even if that were not so, there would still be no breach of duty by the defendants: they have done what the statute requires, namely to state their arrangements under both subsections.

I should mention one other element in the legal background. W's annual statements of special educational need up to 2005 had all contained under Part 6 that is, the part concerned with "non-educational provision" a statement that he required transport to and from school. I understand that it is common practice for transport needs to be covered in this way; and the defendants' policy, in the passages which I have set out, expressly contemplates pupils' travel needs being covered in the annual review of their statements. That is obviously a sensible practice, though I understand that there may be a doubt as to whether any disputes about Part 6 of the statement would fall to be decided by a Tribunal. W's amended statement, issued following the decision of the Tribunal in May 2006, contained no such entry in Part 6. It seems that the defendants had not included such provision in the original version of the statement and Mr S had not queried this when the statement was appealed to the Tribunal. He tells me that so far as he was concerned this was simply an oversight. So far as the defendants are concerned, I am not clear whether the omission was deliberate, in view of the fact that W would shortly be attaining sixth form age, or was also an oversight. The omission is in no way determinative of the issues before me. It simply means that the usual mechanism for addressing transport issues was not employed. It does not, to meet one argument advanced by Mr S, involve any breach by the defendants of their policy. It was only when the Tribunal made its decision in May that W's re-attendance at Whitefield came onto the agenda. At that stage an "annual review" was not appropriate. What was needed and what was received was a decision.

That is the legal background. Mr S's case as it ultimately crystallised before me was essentially twofold. First, he submitted that the defendants have reached a decision which is Wednesbury unreasonable, having regard to their own published policy. Secondly, he submits that the decision was in any event reached procedurally unfairly. It is right to say that the latter way of putting the case does not emerge explicitly from the claim form. Mr Knafler did not object to it being advanced, subject to the proviso that the defendants should not be prejudiced to the extent that their evidence failed to meet a case which they had not had reason to anticipate.

For the purpose of both aspects of the case, it is convenient if at this point I set out in rather more detail the sequence of events leading to the decisions of which complaint is made.

As I have already mentioned, the initial correspondence from the defendants following the decision that W should be re-admitted to Whitefield appears to suggest that transport would be provided. A further letter dated 8th August 2006 confirmed an offer of "transport assistance" and informed Mr and Mrs S that the defendants' transport contractors would contact them in due course "with details of W's pick up and drop off times". A "transport agreement letter" was enclosed, which they were asked to sign. The defendants' evidence is that what they were intending to offer by that letter was "shared transport", that is transport on a school bus of some kind with other pupils. That is not however clear from the terms of the letter as sent.

Mr S responded to that letter by email dated 16th August 2006 to Miss Jaynn Taylor, the defendants' SEN Standards and Service Manager. He said this:

It is Mr Waddington's evidence that he understood that email to be a rejection of the offer made in the defendant's letter of 8th August. I find that incomprehensible. The email certainly raised various questions - legitimate questions as it seems to me - and there is perhaps an implication that if the answers were unsatisfactory Mr S might object to what was being offered; but it does not follow that he would have refused it, and in any event he had certainly not done so at that point.

There was no written response to Mr S's email. He sent a chasing email on 30th August and followed it up with a telephone call to Miss Taylor early that afternoon. According to the statement of facts served with the claim form, the effect of the conversation was as follows:

I have no witness statement from Miss Taylor. That is not a matter of criticism, for the reasons that I indicated earlier: the defendants have had to prepare their case in considerable haste. I do however have a witness statement - indeed more than one - from Mr Waddington. He says in his second witness statement that "shortly before 31 August, Mr and Mrs S informed us that they did not wish to meet us to discuss the transport issue further." On the basis of Mr S's account of the conversation which I have set out, that is not a fair statement of Mr and Mrs S's position, since Mr S had said that he would consider whether a meeting was necessary once he had a reply to his email of 16th August. Although without hearing oral evidence from Mr S and Miss Taylor I cannot definitively decide whether Mr S's account is accurate, I see no reason to doubt it. I am mindful of Mr Knafler's point that I should not make findings adverse to the defendants on the basis of evidence which they have not had the opportunity to challenge; but, as will appear, this point, though not insignificant, is not fundamental to my decision in the case.

On the following day the defendants did indeed write to Mr and Mrs S, but the letter was not a response to Mr S's email of 16th August. Instead, it was in the following terms:

It is this letter which contains the primary decision challenged. The decision is of course a complete volte face on the part of the defendants, who had up to that point been offering actual transport for W. There had been no prior consultation or discussion with Mr and Mrs S as to the proposal that they should drive W to school. Mr Waddington in his witness statement explains the thinking behind that decision and the reason for the defendants' change of position. Having explained, as I have already indicated, that he understood the email of 16th August to be a rejection of the offer of share transport in his letter of 8th August, he says this:

In my judgment that decision was seriously flawed in at least two respects. First, the understanding that Mr and Mrs S had rejected the offer made on 8th August was wrong. Secondly, given that there was a complete change in the defendants' position, even if it were a potentially justified one, it seems to me to be wrong that they should have made it without any prior notice to, or consultation with, Mr and Mrs S. It was wrong simply to assume without discussion that it would be appropriate for Mrs S to drive W to school twice a day, either from her point of view or from W's. I appreciate that Mr Waddington says that the absence of consultation was not the defendants' fault: Mr and Mrs S had refused to come to a meeting. I have already indicated my view that that seems to be a misrepresentation of Mr S's position. But even if I am wrong about that, it was, I think, incumbent on the defendants, if they were contemplating such a radical change, to spell out in terms what they had in mind; and it is not suggested that Miss Taylor gave any indication to Mr S of the defendants' plans in the conversation on 30th August, notwithstanding that it seems highly likely that the decision had already been taken or, if it had not been taken, must at least have been in contemplation.

Mr S informed the defendants that he regarded the decision communicated by the letter of 31st August as unlawful, apparently on the basis (a) that it was a straightforward breach of an obligation under section 509 -- as I have said, he was not I think at that point aware of the significance of the changes introduced by the 2002 Act -- and (b) of a breach of a legitimate expectation that the arrangements which had continued up to the summer of 2005 would resume. I should say that neither way of putting the case is now maintained by him, at least in those precise forms. On 12th September he sent an email to Mr Waddington in the following terms:

Mr Waddington replied to that email later the same day:

Mr S replied, rejecting the "wholly unsubstantiated allegation that I have been rude to staff at Edu Action" and asking for further information about the appeal process, including an assurance that the Panel members would not be employees of the defendants. Mr Waddington replied:

Mr S wrote to the defendants by letter dated 15th September, drawing attention to the fact that Mr Waddington had declined to answer his questions and also enclosing a revised version of the statement of facts. As to that, most of it was concerned with legal submissions. The final section, however, is headed "Practical Issues" and is in the following terms:

In the meantime, the defendants had on 8th September learnt of an incident which had occurred during August when W, while in Newquay in Cornwall on a respite holiday with two carers, had knocked over a 3-year-old child: the child had suffered no serious injury but the matter had been reported to the police. There was at that stage no detailed account of what had occurred, but it had been reported to Whitefield, which took it sufficiently seriously to postpone W's return to school for 28 days pending further enquiries. Even now the facts of the incident are not entirely clear, but I have seen a statement from one of the carers accompanying W which tends to suggest that the incident was not as serious as may at first have appeared.

The appeal to the Transport Appeals Panel was heard on 19th September. The Panel consisted of a head teacher of a local primary school, Miss Skinner, and a Miss Hughes who was employed by the defendants but had no involvement with W or, as I understand it, with Mr Waddington or his team. There was no hearing. The appeal took the form of Miss Skinner and Miss Hughes considering Mr S's statement of facts and a written submission from Mr Waddington or on his behalf. That submission was not made available to Mr S, nor has it been produced in the course of these proceedings. Mr Knafler was indeed taken by surprise to hear of its existence in the course of the hearing - although again I must make it clear that I acquit the defendants of any intention to conceal it, and I recognise the speed with which this case has had to be prepared.

I have a statement from Miss Skinner explaining the decision of the Panel which I shall quote in full:

The Panel's reasoning was thus not identical to that of Mr Waddington in the original decision. It gave careful consideration to the practical problems which Mr S had raised but which had not been put before Mr Waddington. Also, its rejection of the possibility of shared transport was not apparently based on any belief that Mr S had refused it, but on what the Panel had been told about the Newquay incident (though what this was is unclear).

I have to say that I regard this decision also as flawed. I accept that it is not necessary that a Panel of this kind conducting what Mr Knafler called a "low level administrative appeal", designed (in his phrase) to take "a second view", should in every case hold an oral hearing. It may indeed be that, as he submitted, a hearing would be unnecessary in the great majority of cases - although I am bound to say that getting the parties round a table has real advantages in avoiding misunderstanding and ensuring that the Panel gets a clear appreciation of what may often be quite complex problems. But in a case where the Panel does proceed without a hearing, in my view it is essential that both parties should be aware of what the other is saying. I do not regard it as fair that Mr S should not have seen the submission from Mr Waddington which was before the Panel or therefore had the opportunity to comment on it. That unfairness is illustrated by the importance apparently attached by the Panel to the Newquay incident. If Mr S had known that an account of that incident was to be given to the Panel he would no doubt have wished to convince them that the incident was not as serious as it seemed at first sight.

The views which I have expressed above about the fairness both of the procedures leading to the decision of 31st August and of the appeal hearing were made clear by me during the hearing. In response Mr Knafler, on instructions, gave the court an express assurance that the defendants would be prepared to accept from Mr S a fresh application for transport assistance, raising all the matters on which he wished to rely, irrespective of whether they were "fresh" matters -- that is, no point would be taken as to whether they were points which could have been made first time round. Mr Knafler also told me that in the event of an appeal Mr S would be shown, and given the opportunity to comment on, any material which the defendants put before the Panel. That was a most sensible and responsible offer on the defendants' part and to a large extent defuses the question of procedural unfairness. Mr S now has the opportunity to have the defendants have a second look at the entire question of transport provision for W. The only thing which he does not have is a promise of an oral hearing of any appeal. As I have said, I do not believe that such a hearing is necessarily required, although I would expect the Panel to consider whether it would be useful in the light of the issues that it has to consider.

I will return presently to the question of the implications of the defendants' offer for the relief which I should grant in this case. The question remains whether the defendants' decisions (either the original decision or the decision of the appeal panel) were unlawful on substantive as opposed to purely procedural grounds - that is, whether they were Wednesbury unreasonable. It was, as I have said, Mr S's case that they were. He made various particular points but his essential submission was that this was a case where the options stated by the defendants in their policy statement to be their preferred options - that is, that a pupil of W's age should walk to school or travel by public transport - were plainly not available; and that in such a case it was wrong in principle to expect an unwilling parent to drive the child to school, treating him or her as (in his phrase) an unpaid taxi driver. In such a case, he submitted, an authority had to provide actual transport. Under the policy, provision of actual transport, and in particular a dedicated vehicle, is specified to be a last resort; but this was precisely one of the cases in which that kind of last resort provision was necessary. It could not, he submitted, be a proper exercise of discretion to refuse to provide transport to a child with special educational needs who would otherwise, if the parents were obdurate, be deprived of the opportunity to be educated.

I see the force of that submission, but I think it is too stark. The regime under sections 509AA and 509AB is deliberately one where there are no absolute obligations on local authorities to provide transport, even as regards children with special educational needs. It is clear, in particular from section 509AB(3), that the authority's policy is intended to have regard to a range of discretionary factors, including in particular - at (a) - the reasonable practicability of the child receiving education if no arrangements were made and - at (d) - the cost of the provision of transport. In those circumstances it seems to me that parents have obligations too. They should not be encouraged to believe that they should do nothing to help to get their children to school on the basis that if they do not the local authority will have to. (I do not of course say that that is Mr and Mrs S's attitude; I am speaking generally.) There is perhaps some parallel, although the specific legal issue was different, with the decision of the House of Lords in Rogers v Essex County Council [1987] AC 66, where it was held that in the case of a school journey within statutory walking distance parents would in certain circumstances be expected to walk their children to school. I appreciate that, as Mr S pointed out, in the case of disabled children their transport needs may not, unlike the case of children without a disability, get any less as they reach the age of 16. But the fact remains that the statutory rules and regime do change at that point. Children with disabilities or special educational needs cease at that age to get the transport provision that all children get, and they enter a different world where their parents may have to do more. I do not wish to be misunderstood on this point. There is no absolute rule that the parents of children over 16 who cannot travel to school on their own are expected to take them. What parents can be expected to do will depend on their circumstances. There will be cases where it is not reasonable to expect them to drive a child to school. Each case will turn on its facts.

That deals with the Mr S's only root-and-branch attack on the reasonableness of the defendants' decisions. He had, as I have said, particular criticisms of particular aspects of those decisions. One point of contention is whether the Panel's assessment of the ease of the journey which Mrs S would have to make was a realistic one. Another concerns the impact of so long a journey on W himself. But these are not of their nature points of law. Of course if the assessments made by Mr Waddington on the one hand or the Panel on the other had been perverse they would in principle be susceptible to judicial review. But since Mr S is to have the opportunity to have those decisions revisited in any event, I see no advantage, and some disadvantage, in my traversing that ground now - particularly as part of the reason why those decisions are to be revisited is that not all of the relevant considerations or information had been brought to the defendants' attention. I should only express a view on those points if I felt able to say with confidence that on some particular aspect there was only one view which the defendants could reasonably take; and I am not in that position. It may, however, assist if I make a few points about the approach which the defendants should take to any reconsideration.

The starting point is that it appears to be common ground that W is "eligible" for transport assistance as defined by section 2 of the defendants' policy. The only question is what form of assistance he should receive, and in particular of course whether it is reasonable to expect Mrs S to drive W to school and back every day rather than the defendants offering him actual transport. That decision requires a careful and sensitive assessment, based so far as possible on reliable information or evidence. There is evidence in Mr Waddington's third witness statement before me of a somewhat forensic approach to the issue, pointing out perceived inconsistencies in the stance taken by Mr and Mrs S in the past and now. That approach may be understandable in the context of these proceedings, particularly in the light of Mr S's own approach; but it has no place in the assessment now required, which should be conducted with an open mind and a clean slate. Reference back to what the parties may or may not have said on previous occasions is not going to assist in the taking of a reasonable decision. Relevant considerations will include:

I have mentioned those factors because they are factors which featured in the evidence and argument before me, but they are in no sense exhaustive. It will be for the defendants to consider any matter which is put before them or which they consider relevant in making the assessment required - on the assumption, which I suspect is inevitable, that Mr S will wish to take up the offer made by Mr Knafler.

I should finally mention, by way of footnote, that Mr S referred in argument to the Disability Discrimination Act 1995. There was no reference to this in his claim form and he disavowed any intention to rely on it directly - he said it was only relevant by way of background. I cannot see how the Act is directly engaged in any respect relevant to the defendants' treatment of W. They will of course take into account the extent of his disabilities in deciding what is the appropriate form of transport provision to offer.

I return therefore to the question of relief. I have already expressed my view that the defendants' decisions of 31st August 2006 and in the form of the decision of the Appeal Panel were unfairly arrived at. But the defendants' offer which I have recorded above provides a remedy for that. In those circumstances, it is unnecessary that I should formally declare the decisions to have been unlawful or make an order quashing them; and as a matter of discretion I propose not to do so. The distinction is perhaps formal rather than substantive but I think it is appropriate in this case for three reasons.

First, I have borne in mind Mr Knafler's points that the procedural unfairness challenge was largely unheralded until the hearing. Whilst my reasoning is such that I think it very unlikely that the outcome of this application would have been any different if the defendants had had a fuller opportunity to respond, I prefer to avoid imposing the stigma of a formal finding of unlawfulness in these slightly unsatisfactory circumstances.

Secondly, I think that some marker is appropriate of the good sense and responsibility shown by the defendants in authorising Mr Knafler to make, in the course of the hearing, the offer that he did.

Thirdly, and perhaps more sensitively, it has been very apparent to me from the tone of the correspondence which I have seen that there is no love lost between Mr S on the one hand and Mr Waddington on the other. I have the clear impression that Mr S regards the defendants as essentially a hostile bureaucracy who will not do the right thing unless consistently harried. Mr Waddington in the emails which I have quoted makes no secret of his views that Mr S is, in his words, vexatious and rude; and his exasperation has led him into some ill-considered language both in the emails considered above and in what I judge to be another ill-considered incident, when he reported Mr S to his employer for using his email during his employer's working time. I am not going to attempt to decide whether or to what extent Mr S's view of the defendants and Mr Waddington or Mr Waddington's view of Mr S is justified. There is obviously a long history here, and I have seen very little of the relevant material. I should however say that I am quite sure that both parties wish, within the limits of the different constraints applying to them, to do their best for W; and I am sure that the views which each holds of the other are likely to make it less easy for the right decisions to be taken in W's interests. I strongly suspect that if the parties had had a proper and constructive working relationship the decision of 31st August would not have been taken in the way that it was: Mr S would have been prepared to have a meeting with Mr Waddington or Miss Taylor, and the defendants would have taken more trouble than they did to explain themselves. I very much hope that both parties will do their best in future to calm down, and to attempt to resolve the transport problems, and the other problems affecting W's education, on the basis that each is acting in good faith. An adverse finding in judicial review proceedings would not be in keeping with the more co-operative approach which I strongly wish to encourage; and for that reason also I do not propose to make any order. It goes without saying, however, that I make this decision on the basis that for all practical purposes the defendants are bound by the offer which was made to me and which I have recorded.

Accordingly for those reasons I make no order for the claimant's application.

MR S: My Lord, I would ask for costs in relation to this matter. The offer that you referred to in the judgment was only made pursuant to the application being brought. In my submission that offer would not realistically have been made had the application not been brought and I would seek costs. There is the added complication that there is, as I said at the hearing, a separate JR relating to the termination of W' s place at Whitefield in July 2005, where the issue of costs is still outstanding. Indeed, the final determination of that application is still outstanding and my suggestion would be that the issue of costs in this action be joined with the issue of costs in the other action.

MR JUSTICE UNDERHILL: Thank you. I need not hear you, Mr Rutledge. I do not propose to make an order for costs in this case. The primary reason is that although Mr S has substantially succeeded to some extent, he has succeeded on only part of the arguments which he advanced and that part on which he succeeded was not a part which he advanced at all in the original way in which the claim form was presented. That, I say, is my primary reason, but it is a decision I am pleased to come to because it is consistent with my view that I do not want either party to come away from this in any sort of triumphant way -- I am not suggesting Mr S would be triumphantist but I want to avoid so far as possible a perception of winners and losers.

If you are about to make an application, Mr Rutledge, I will hear it but you will guess that the ground will be fairly stony.

MR RUTLEDGE: Yes, I understand. That does not really leave scope for any application for costs in these proceedings, but one can understand that those behind me formed a view that the points of law that were raised did not succeed, although in lay man's terms one could perhaps describe it as a "draw" and I am very conscious of your comments, my Lord, that the parties should calm down and cooperate and W should be the primary interest. But perhaps it would help those behind me if one could reiterate why it would not be appropriate for a costs order to be made.

MR JUSTICE UNDERHILL: Mr Rutledge, I think it is adequately clear, it is a mirror image of what I said to Mr S. Although he has not succeeded on some of his fundamental points of law, he has satisfied me, and it has appeared from my judgment, that this was not fairly handled by the defendants. There may well be mitigating circumstances here, I am sure there are, but the fact is that you have not won this case. It is a draw and I would not like to say who comes out the better out of the draw, but certainly you come no better out of it than Mr S.

MR RUTLEDGE: I think that is more than adequate to satisfy the parties.

MR S: My Lord, I would ask for leave to appeal if only just to keep my powder dry in relation to the matter generally to give it further consideration. The concept of a draw in this action is, I have to say, one that I don't think occurred to me at the outset or indeed during the course of the action and I would be surprised if it had occurred to the defendants but I certainly would not rule out the possibility of an appeal and therefore I would seek leave in general terms.

MR JUSTICE UNDERHILL: You would have to persuade me that one of the points on which you lost was a hard-edged point of law on which there was a reasonable prospect of your succeeding. At the moment I cannot see which point that would be.

MR S: My Lord, I think an appeal would effectively be based upon your Lordship's decision to decline to make an order that in the circumstances of this particular case the defendants' decision was Wednesbury unreasonable or --

MR JUSTICE UNDERHILL: Yes, I think that is how you have to put. I think the nearest you come to a hard-edged point is what I have called your "root and branch point" that in the case of someone like W, although there may be a discretion, it is a discretion which can only be exercised one way. No, I am not prepared to give permission on that basis.

MR S: So be it.

MR JUSTICE UNDERHILL: Is there anything else?

MR RUTLEDGE: My Lord, just one housekeeping matter, those behind me are obviously keen to examine the transcript that may be forthcoming.

MR JUSTICE UNDERHILL: I have never quite got to the bottom of what the procedures here are, but maybe the associate can tell you. There are, however, I know, because I have had it before, procedures whereby the provision of a transcript can be expedited, possibly you have to pay.

MR RUTLEDGE: So long as it is in the pipeline.

MR JUSTICE UNDERHILL: It will only be if you ask for it. So you had better make the necessary enquiries. What normally happens is it comes to me to correct before it comes to you, and I prefer that, especially when one has had to deliver a long judgment extemporary and I am sure there will be some minor tidying up, though no changes of substance -- I say extemporary, it is not extemporary but a judgment orally I should say -- but I ought to be able to turn that around within 24 hours once it reaches me. In an extreme case I am prepared to and have authorised you seeing the uncorrected transcript, but I would need to know why that was necessary.

MR RUTLEDGE: That is not my intention, my Lord.

MR JUSTICE UNDERHILL: You get on with getting it from the shorthand writers, they will get it to me, I will correct it as quickly as I can and at that point you will get it.

Can I just say informally what I have already said in the judgment, and I do not know the background to this case but I do know from my experience in courts generally how litigation can have a very souring effect on people who have to get on in a non-litigation context. I, without passing any judgments at all, I can see how some of Mr S's correspondence may have got up Mr Waddington's nose; I can see how some of Mr Waddington's reactions may have seemed to Mr S inappropriate and intemperate. These things are very understandable in human terms and I pass no judgments. I think that it is important, however, that the parties do try, if they cannot actually like one another to get on with one another because they are going to have to go on dealing with one another. It is easy for me to sit up here and say but I hope you will both take that to heart as much as possible.