Whitcher v Secretary of State for Communities and Local Government

Yes, Mr Cottle.

MR COTTLE: May it please you, my Lord. I just trouble you on the question of permission to appeal and I know --

MR JUSTICE DOVE: Before we go there, could I just deal with costs because you also raised some issues in relation to costs. I am happy to deal with those now, as I see everybody, is everybody here represented?

MR COTTLE: Yes.

MR BEDENHAM: Yes.

MR COTTLE: My Lord, in my submissions on costs, I said 10 hours. It is in fact 18.5 hours that have been spent on the documents. In my paragraph 7, I say 10 hours, it is 18.5 hours.

I was on a case in front of HHJ Pelling QC where he was saying: "More than a day?" I mean, it is a point of law on a decision letter. 18.5 hours is quite a lot of time to be spending on the documents, and that is why I raised a question in relation to it.

MR JUSTICE DOVE: All right. Could I just find out what. I have a schedule.

MR COTTLE: Page 3 of the schedule of costs, I believe. Or is it page 5? Page 3 has the 1800, page 5 has the breakdown.

MR JUSTICE DOVE: I cannot see 18, maybe I am missing something?

MR COTTLE: It is at the top of the third page, my Lord.

MR JUSTICE DOVE: Ah yes, sorry, sorry, sorry.

MR COTTLE: The last page is the schedule.

MR JUSTICE DOVE: Yes.

MR COTTLE: I just query 16.6, plus approximately 2. It is 18 and a half hours. I just query it on behalf of my client or perhaps it is on behalf the Legal Aid Agency, I know not, but I just query that.

MR JUSTICE DOVE: Yes. Well, I mean, the lion's share of that appears to be a draft, and review of minute of advice which took nearly 11 hours, Mr Bedenham.

MR BEDENHAM: My Lord, yes. In fact, an initial review of the papers (by the lawyer) instructed the Government Legal Department provide advice to the client. My Lord, of course the GLD has not been involved in the enquiry process, so it comes to this cold.

MR JUSTICE DOVE: Like me, but I did not take 11 hours to read the papers.

MR BEDENHAM: My Lord, no, although it is right to say that the work, in the main, was conducted by a Grade D fee earner, which is £90 an hour.

MR JUSTICE DOVE: But that is as maybe, that is not the point. The point is what is the 11 hours? I accept my remark was some somewhat facetious in the sense that what I have to do is read the bundle, and I do not have to advise anybody other than myself about it, nor do I have, there may, it says "draft and review minute of advice", so presumably there was some writing up of something as well.

MR BEDENHAM: So it is providing the advice to the client drafted by the Grade D fee earner and then the Grade A fee earner reviews the advice that was drafted.

MR JUSTICE DOVE: I see. Yes, well, that took an hour and a half, and that seems -- I do not think, that is not necessarily a source of Mr Cottle's complaint. I think his complaint is really directed at the 11 hours that it took to read a relatively straightforward inspector's decision and produce some advice. I mean, frankly thinking, it seems to me half of that would have been plenty.

MR BEDENHAM: My Lord, I was not involved in the substantive matter, however --

MR JUSTICE DOVE: -- no, well it is a straightforward 288 challenge.

MR BEDENHAM: Indeed. My instructions are, though, that the grounds of claim were not always easy to comprehend and to deal with for advice purposes, and that added to the time that was incurred.

MR JUSTICE DOVE: Anything else you want to say?

MR BEDENHAM: My Lord, no.

MR JUSTICE DOVE: All right. Well I am going to summarily assess costs in the sum of £2,500. It seems to me that the 11 hours which was taken to draft the minute of advice on the basis of the papers which I had, which cannot be any different from those which were had by the lawyer, is excessive and I am therefore (in a rough and ready manner) reducing the costs to reflect that.

Then the other matter, Mr Cottle, is I want to be sure for your sake that we have the Legal Aid provisions in the order in the way that you need them. I always rely on counsel to tell me that they are happy with this because they are the people who at the end of the day need to be happy about it.

MR COTTLE: There is an Appendix 3 to the CPR.48 which gives us the wording. I tried to copy that. So, we are liable for their assessed costs.

MR JUSTICE DOVE: Yes.

MR COTTLE: I would ask that you put £2,500 in paragraph 2.

MR JUSTICE DOVE: All right, got it.

MR COTTLE: And that the determination to pay those costs is postponed as of the usual way.

MR JUSTICE DOVE: Is that -- that is, yes, that is dealt with in Minute 3 of the order.

MR COTTLE: That is the point, that is exactly right, yes.

MR JUSTICE DOVE: Then Minute 4 enables you to be paid under the certificate. Yes. Good, so that, I think, unless anybody has got any observations, brings us to permission to appeal.

MR COTTLE: That is right.

MR JUSTICE DOVE: You have furnished me with a short paper in relation to that.

MR COTTLE: The point, really, is that if my client should be living outside the park, whether or not a respite of a temporary remission until the supply is available in the immediately joining areas it seems, with respect to the Secretary of State that my client's case for a 'temporary' has not been truly considered on the proper facts as it should be, because 'you are not going to be staying in the park', it means that we ought to have a 'whether I view' as to what is happening into the immediately adjacent areas. That would be the humanitarian response to a person with a disability with family connections before they move on because there is a public interest in avoiding road-side encampments.

That is a respectable case in my respectful submission and that is why I put it forward on the basis of paragraph 45: I know we disagree on this, paragraph 45 and 46 when read together gives or attaches weight to the unmet need: but it does not have as another source of weight weighing in favour of the appeal. The other factor which should have been weighed which is the absence of a 5 year supply. My Lord read it into paragraph 45, and with the greatest of respect I take paragraph 45 as explaining temporary admission is not appropriate.

MR JUSTICE DOVE: Well, Mr Cottle, on the narrow issue of do I think there is a realistic prospect of your client's succeeding in the Court of Appeal on the narrow question of law as to whether or not the reasons in paragraph 45 and 46, and 45 in particular, were adequate, I am afraid I am against you. I do not think you have a realistic prospect.

The points that you raise are merits points which may, (and I can do no more than this), may, if your client were to apply for temporary permission engage the interests and persuade the second defendant.

But the route to achieve, if you can, what you have raised in those broader submissions that you have made is a merits-based appraisal of an application for a temporary omission. That is not something I am seized of, nor am I encouraging you to make such an application, but clearly if you feel that there is merit in such an application then it can be pursued with the second defendant.

MR COTTLE: Then, my Lord, we will be putting a line through "granted" on paragraph 5.

MR JUSTICE DOVE: With the greatest of respect, I would.

MR COTTLE: The only other question is --

MR JUSTICE DOVE: -- what I will do, sorry to cut across you, I have a form to fill in as a result of the application. I will complete the form and my usual practice is to send that to counsel so you know what I have said on the form. If your client (because I do not claim to have a monopoly of truth), if your client wishes to take the matter up with the Court of Appeal you at least will have advance notice of the what I have said on the application, which will reflect what I have just said, that I do not believe it was possible.

MR COTTLE: I am grateful, my Lord. There was a case on perversity where I was before one judge, and the counsel for the Secretary of State was saying it is a matter of impression and then the Court of Appeal granted permission on a perversity point, so it is a question of impression, but there we are.

MR JUSTICE DOVE: Yes, well, it is out of my hands now.

You have asked for a short extension of time in relation to appeal. Does anybody have any issue with that, no. So I am happy to grant the extension of time, so that if you need to take not simply instructions, but take up matters with the Legal Aid Authorities, that would give you the time to do so.

MR COTTLE: I am obliged.

MR JUSTICE DOVE: I have scribbled on this, but would it be possible, Mr Bedenham, for you to perfect -- do you have copy of this electronically?

MR BEDENHAM: My Lord, I can get a copy of it electronically.

MR JUSTICE DOVE: If you could do the corrections, circulate it to the parties and my clerk, I can then finalise the matter in a rather less scruffy version than the one I have just amended in the light of those decisions. So if you could email that through to my clerk that would be really helpful.

Could I thank you all very much indeed for your attendance today. There is no need for you to remain, I have a couple of other things for to deal with and I am happy for you to depart.