Roberts, R (on the application of) v Welsh Ministers

MR JUSTICE WYN WILLIAMS: For reasons which I shall explain in an addendum to my judgment, I decline to quash the decision. I have thought about whether it is appropriate to afford Mr Bowen further time to elaborate the issues which may be relevant to the quashing. But for two reasons, I have decided that is not appropriate.

The first will become apparent from the terms of the addendum to my judgment, which will explain why there is no need for Mr Bowen to address the wider issue that I raised with him any further.

But secondly, and imposing a degree of discipline for once in this case, I flagged the issue of quashing in my draft judgment. The parties have had, I think, five days or thereabouts to consider their position, and there does come a point in time where the judge is entitled to say: enough is enough.

MR LEWIS: My Lord, in that case, I apply for costs in this case. It is best if I set out the principles and the facts first, my Lord.

MR JUSTICE WYN WILLIAMS: Well, hang on a minute. I gained the impression that the claimant was legally aided. Am I right about that?

MR BOWEN: We are.

MR LEWIS: Yes. Well, in that case, there will be two things, my Lord. It will be a cost offset, to be enforced. I don't know whether, in the light of the decision refusing to quash and in the light of the fact that your Lordship has substantially found for us on all the grounds save for the procedural route, your Lordship will say: no order for costs in these circumstances.

MR JUSTICE WYN WILLIAMS: Isn't that unreal in this case? Isn't it just best to say "no order for costs"?

MR BOWEN: The only issue is really on my side, my Lord. You are absolutely right, it is academic. If you make an order it is totally unenforceable. The only issue is whether I am entitled to any costs.

MR JUSTICE WYN WILLIAMS: But I got the strong impression that this case is a classical "no order for costs" case, in the light of the --

MR BOWEN: Will you just hear me very briefly, my Lord?

MR JUSTICE WYN WILLIAMS: Yes, of course.

MR BOWEN: We have won substantively on two major areas. I don't need to articulate what they are.

MR JUSTICE WYN WILLIAMS: Yes, of course you --

MR BOWEN: And there are many examples. I think the Libraries case is one; they are in my authorities. And in any event, it is an area entirely founded by your Lordship's discretion. But even where a quashing order is not provided, a claimant can get his costs.

MR JUSTICE WYN WILLIAMS: Oh yes. Nothing about that --

MR BOWEN: And I would say that this is more than a Pyrrhic victory. There have been --

MR JUSTICE WYN WILLIAMS: If I can put this to you, and then you can just address this. Normally, a party who is the overall victor gets his costs. In my judgment, you have both fought what can best be described as a good fight, and you have both won on important issues. You have won in establishing that the process by which the popularity issue was determined was not correct. The counsel and the Welsh ministers have won what I suspect they regard as an important issue in defending their policy.

MR RODDICK: Yes.

MR JUSTICE WYN WILLIAMS: So it does seem to me to be classically the case where I should say, "No order as to costs".

Anyway, that is what I am going to do and if you think I am wrong about that as well, then obviously --

MR BOWEN: There are --

MR LEWIS: We would accept that, my Lord. We are not taking that further.

MR BOWEN: I am not going to get anywhere in trying to persuade you otherwise, my Lord.

MR JUSTICE WYN WILLIAMS: No. I mean, I have to take a view on this.

MR BOWEN: Could I make a very quick application for permission to appeal?

MR JUSTICE WYN WILLIAMS: No, I am going to direct -- if there is going to be an appeal, it needs to be properly formulated. I am going to direct that any application for permission to appeal should be made directly to the Court of Appeal, because in that way, you would be forced to formulate grounds and their Lordships can see whether there is anything in it.

MR BOWEN: Could you extend time, my Lord, for me to do that?

MR JUSTICE WYN WILLIAMS: I have to say, you have got 28 days. I mean, you know --

MR BOWEN: I have to get legal aid.

MR JUSTICE WYN WILLIAMS: Well, I am sorry about that. But there are a whole host of competing considerations here; and I do think that the normal period is sufficient in this case.

MR BOWEN: It is 28 days.

MR JUSTICE WYN WILLIAMS: It is 28 days, yes. I am right about that, aren't I, Mr Lewis? We can check that. Certainly you should have 28 days. That is --

MR RODDICK: Whilst that is being checked; if that is your Lordship's final word, so far as costs are concerned, it deprives my junior of the opportunity to make submissions about costs, in accordance with a long tradition in the Chancery Division.

MR JUSTICE WYN WILLIAMS: Well, will you convey to Mr Morris that I would willingly hear him on many occasions, but not on this one.

MR BOWEN: Would your Lordship consider the 28 day period running -- we have got a lot of holiday coming up.

MR JUSTICE WYN WILLIAMS: Yes, Mr Lewis?

MR LEWIS: No, according to the White Book, it is 21 days. I am not going to resist 28 days.

MR JUSTICE WYN WILLIAMS: No, I will say 28 days.

MR BOWEN: Which gives us until when?

MR LEWIS: I am just looking at the time for filing the appellant's notice, where he seeks permission.

"The appellant must file the notice within such period as may be directed by the lower court."

MR JUSTICE WYN WILLIAMS: Yes, well --

MR LEWIS: "Or where the court makes no such direction, 21 days."

So if you want to give 28 days --

MR JUSTICE WYN WILLIAMS: Let me get a calender. I will put a date on it, and then you can ... 2011. So we are on the 21st.

MR LEWIS: 21st.

MR BOWEN: I am told --

MR JUSTICE WYN WILLIAMS: 28th, 2nd, 9th. Sorry, the 11th is 28 days from today; yes? The 11 January. I will say --

MR BOWEN: Can you give me until the 20th?

MR JUSTICE WYN WILLIAMS: I will say that you can have until 4 pm on 13 January, which is the end of the week, which gives you 30 days.

MR BOWEN: Sorry, that is not --

MR JUSTICE WYN WILLIAMS: Yes. As I calculate it, Mr Bowen, we are on the 21st, are we not?

MR LEWIS: You are giving 23 days, my Lord.

MR JUSTICE WYN WILLIAMS: Yes, just because --

MR BOWEN: Two extra days, my Lord?

MR JUSTICE WYN WILLIAMS: Yes. Well, you know, I am going to have to spend my Christmas writing a judgment so I think you can spend yours writing a notice of appeal, if you think it is appropriate.

MR BOWEN: You are a very harsh man, my Lord. I will wait until the --

MR JUSTICE WYN WILLIAMS: I think the word "harsh" is very rarely used in my court about me. I may be many things, but not ...

MR BOWEN: I will ask until the 18th, my Lord.

MR JUSTICE WYN WILLIAMS: Well, you can ask away, but I have decided it is 4 pm on 13 January.

So that concludes my part of this case; but to provide the addendum to my judgment to explain my reasons for not quashing.

MR BOWEN: I have just been -- sorry, another point, my Lord. I have just been reminded or told that in 137 of the judgment, you said that we did not elaborate on the content of ground 5. That is because I was not able to, because you cut me off. But it was a timing point, my Lord.

MR JUSTICE WYN WILLIAMS: Enough, enough. If you have complaints about my procedural handling of the case, as well as my substantive handling --

MR BOWEN: You have been enormously patient, my Lord.

MR JUSTICE WYN WILLIAMS: -- no doubt the Court of Appeal can comment upon that as well.

There is one point that has to be taken into consideration. What I intend to do is to write this addendum and be in a position for it to be distributed on Friday of this week. That being the case, you will have your full time to do it, all right, so to put your notice of appeal in.

But what I would like you to do is to make sure that you provide e-mail addresses to my clerk in the first instance; but it probably won't be she who sends them to you. I will make an arrangement for the Cardiff Civil Justice Centre, because I will be going home to Wales after today, to distribute this addendum as soon as possible and in any event, by Friday.

MR BOWEN: Thank you very much, my Lord.

MR LEWIS: My Lord, can I say three things?

Firstly, on a purely technical point, your Lordship will, when giving the reasons for the addendum, need to think about the terms of the order. Obviously no order for costs.

MR JUSTICE WYN WILLIAMS: Yes.

MR LEWIS: Any application for permission to appeal to go to the Court of Appeal by 4 pm on the 13th --

MR JUSTICE WYN WILLIAMS: Well, I will get the Civil Justice Centre, in conjunction -- well, because it is a Cardiff case, so they will have the conduct of the order. So a draft order or a sealed order will come with my addendum.

MR LEWIS: But the only question I am inviting your Lordship to think about before Friday is whether you say, in paragraph 1, that the claim for judicial review is dismissed before -- because that is what you normally do when relief is refused; or whether you want to elaborate and say: the claim for relief is refused. It is just a matter for your Lordship.

MR JUSTICE WYN WILLIAMS: I will chose a form of words in the order which shows that, which demonstrates that, any persons interested in this case should read my judgment to understand what has happened.

MR LEWIS: Yes. But I would just draw your attention to that, and you can see that, my Lord.

Secondly, my Lord, I know I have mentioned it and I know your Lordship will have it in a notebook; but lest it gets lost in all the excitement of this morning. You won't forget that your Lordship was very kindly going to --

MR JUSTICE WYN WILLIAMS: No, no.

MR LEWIS: -- consider Mr Williams.

And the only other thing I have to do, my Lord, is wish you (speaks Welsh). Merry Christmas and happy New Year.

MR JUSTICE WYN WILLIAMS: Well, when the Welsh language is featured, sometimes I wish I could speak it. I can't. I used to be able to, and it is to my shame that I am no longer able to.

MR LEWIS: Merry Christmas.

MR JUSTICE WYN WILLIAMS: But I did know what you meant, Mr Lewis.

MR BOWEN: Merry Christmas.

MR JUSTICE WYN WILLIAMS: I will say -- if you will ensure, by sending to my clerk, as soon as you can, an e-mail address, so that then this judgment can be properly distributed.

MR BOWEN: I think your clerk has all of our e-mail addresses.

MR JUSTICE WYN WILLIAMS: I think she has.

MR BOWEN: We have been in communication.

MR JUSTICE WYN WILLIAMS: And despite the occasional complaint about each other and despite my occasional complaint about what I regarded as a degree of bombardment, it has been an extremely difficult and challenging case and thank you for your help.

MR BOWEN: Thank you for your patience.