Case No: CO/3605/2000
Neutral Citation Number: [2001] EWHC Admin 310  
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 11th April 2001

B e f o r e :

THE HONOURABLE MR JUSTICE SILBER
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	The Queen on the application of Hilary Wainwright		Claimant	
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	Richmond upon Thames London Borough Council	Defendants	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr. James Maurici (instructed Rowe & Maw for the claimant)
Ms Nathalie Lieven (instructed by R J M Mellor, Head of Legal Services, London Borough of Richmond upon Thames for the defendants)

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Silber: 

1.	Mrs. Hilary Wainwright (“the claimant”) seeks to quash a decision of the Transport Sub-Committee of Richmond-upon-Thames London Borough Council (“the defendants”) made on 28 June 2000 (“the decision”) by which they approved the proposals for a toucan crossing and associated works outside 81 St. Margaret’s Road.  A toucan crossing is a signal-controlled crossing for pedestrians and cyclists, which has wider crossing lanes than the familiar “pelican” crossing does.  Apart from having pedestrian red and green signals, toucan crossings also have a green cycle signal.
2.	The claimant lives immediately adjacent to the location of the proposed toucan crossing at Flat 2, 83 St. Margaret’s Road. She brings this application on her own behalf and she does not represent any or all of the local residents, who might be affected by the proposed alteration to St. Margaret’s Road and the necessary works flowing from the decision under review.
3.	The decision, which the claimant is seeking to quash, was to approve a report of the defendant’s head of Highway and Transport which recommended that the Transport Sub-Committee “[a]pprove the proposals as advertised under Section 6 and Section 23 of the Road Traffic Regulation Act 1984 (“the 1984 Act”) and as detailed in paragraph 3.6 – 3.10 shown on drawing T/A3004-5/12 Rev A at Appendix B”.
4.	That proposal was summarised at paragraph 3.6 of the Report as follows:
The proposal is to introduce a Toucan crossing outside No. 81 St. Margaret’s Road providing a cycle crossing facility on this section of the London Cycle Network.  This crossing facility will replace the refuge outside No. 89 St. Margaret’s Road.  Highway realignment works will widen the footway on both sides of St. Margaret’s Road and narrow the section of the carriageway.  This will allow for a segregated cycle lane to be introduced on both footways to direct cyclists from the side roads to the toucan crossing.  The carriageway realignment will also create a more uniform road curvature improving driver visibility”.
5.	After a short debate and in the early hours of 28 June 2000, the Sub-Committee endorsed (“the sub-committee decision”), the recommendations in the report.  On 17 August 2000, the claimant wrote to the defendants expressing a number of concerns relating to the legality and merits of the decision.  On 24 August 2000, the defendants replied offering “a speedy review of the proposal and procedures” which would be undertaken by a councillor, who was not a member of the Sub-Committee, and an officer from outside the Highways and Transport team. 
The Review Panel considered the matter and concluded that: 
“although there were areas where we felt that improvements to processes could be made, the Panel concluded the decision was not unlawful.  The reasons for this are set out in the attached report.  I also asked the solicitor who deals with planning and transport matters to review the conclusion we had come to, on the basis oft the evidence in the attached note.  He has confirmed the view that the decision is lawful.  The Panel will of course would be happy to discuss any points with you when you come on Thursday.  You will recall I said we would also review the substantive decision even if we came to this conclusion”.
6.	The claimant responded by e-mail on 14 September 2000 raising a number of matters.  A meeting took place on that day between the Review Panel and the claimant and it lasted from approximately 3.30pm. to 5.30pm.  Points were made at that meeting about the conflict of evidence between officers and the local residents concerning the notification procedures that had been employed by the defendants.
7.	On 20 September 2000, Miss Quant, on behalf of the Review Panel, wrote to the claimant enclosing a revised note of the review of the decision-making process and a copy of the Review Panel in which the Review Panel concluded that the “decision was not unsafe”.   It was also pointed out as regards the differences between the claimant and the council’s officers on the manner of operation of the notification system, “there is no evidence to justify accepting one version over the other”.  The present application was commenced and Ouseley J.  gave permission to make this application.
8.	The decision has not been implemented pending the resolution of the present judicial review application .The claimant accepts that a decision on whether to introduce such a crossing and, if so, the type and location of the crossing is a decision properly to be taken by the defendant, provided that it is an informed decision taken after proper consultation with interested parties, including local residents.  She contends that an informed decision after proper consultation was not taken in this case.
  THE STATUTORY FRAMEWORK
9.	It is common ground between the parties that this case concerns the Council’s powers under section 23 of the 1984 Act and it is appropriate at this stage by way of background to give some account of the statutory provisions, which are accepted as being common ground between the parties.
10.	Section 6 of the 1984 Act allows a traffic authority for a road in Greater London to make an order for controlling or regulating vehicular and other traffic, including pedestrians.  Provisions may be made, in particular, for any of the purposes or with respect to the matters  in Schedule 1 to the 1984 Act and for any other purpose which is a purpose mentioned in section 1(1)(a)-(g) of the 1984 Act.  The procedure to be adopted by local traffic authorities in making orders under section 6 is set out in the Local Authorities’ Traffic Orders, etc. Regulations 1996 (No.2489) (“the 1996 Regulations”).  Regulation 4(1) deals with the application of the Regulations to section 6 orders proposed to be made by local authorities.
11.	Paragraphs 34 and 35 of Part VI of Schedule 9 to the 1984 Act provide that in relation to an order under, inter alia, section 6 of the 1984 Act if any person desires to challenge the validity of, or any provision contained in, an order to which Part VI of Schedule 9 applies on the grounds that it is not within the relevant powers or that any relevant requirements have not been complied with in relation to the order, this shall be done by applying to the High Court within six weeks from the date upon which the order was made.  The application would be governed by CPR Schedule 1, RSC Order 94 Rule 1.  Paragraph 37 of Part VI of Schedule 9 to the 1984 Act contains a preclusive jurisdiction clause to the effect that other than as provided for in Part VI, an order under, inter alia, section 6 shall not, either before or after it has been made, be questioned in any legal proceedings whatever.
12.	Section 23(1) of the 1984 Act confers a power on a local authority to establish crossings for pedestrians on roads for which they are the traffic authority (and also a power to alter or remove any such crossings).  Section 23(2) provides that before establishing a crossing, a local traffic authority “shall give public notice of that proposal”.
13.	Section 23 of the 1984 Act does not involve the making of any order under the 1984 Act.  The 1996 Regulations do not apply to the exercise of the powers under section 23.  Nor does Part VI of Schedule 9 to the 1984 Act apply to the exercise of powers under section 23.  Therefore, the present judicial review application lies in relation to the exercise of powers under section 23.
14.	As the target of the claimant’s challenge is the decision to establish the toucan crossing under section 23 of the 1984 Act, it is common ground between the parties that the appropriate procedure for challenging the impugned decision of the Sub-Committee is by an application for judicial review and this course has been adopted by the claimant. 
The issues
15.	The issues that arise for determination on this application are :
a. Whether the various failings on the part of the Council while purporting to give notification of the proposals prevented there being fair and effective notification and consultation (“Issue 1 – Notification and general consultation”)?
b. Whether apart from the matters covered by Issue 1, the process of consultation was otherwise fair and effective, in particular, having regard to the withdrawal of the alleged offer of a pre-decision meeting in breach of a legitimate expectation of the claimant and other interested and affected residents (“Issue 2 – Consultation at the pre decision meeting”)?
c. Whether the Report of the Sub-Committee was inaccurate and  whether this prevented there from being fair and effective consultation?  Alternatively, whether the contents and terms of the Report resulted in the Sub-Committee failing to take into account material factors (“Issue 3 – the adequacy of the Report”)?
d. Whether the conduct of the Sub-Committee meeting itself further prevented there being fair and effective consultation (“Issue 4 – the Sub-Committee meeting”)?
e. Whether the fact that a safety audit of the proposals was not undertaken until after the sub-committee had reached its decision prevented there being fair and effective consultation?  Alternatively, whether this meant that the Sub-Committee failed to take into account a material consideration (“Issue 5 – the failure to have regard to a material consideration”)?
f. If there have been any failures by the defendants under any of the issues numbered 1-5 above, what relief, if any, should be granted to the claimant (“Issue 6-the relief issue”).
Before dealing with the issues raised on this application, I must express my appreciation to counsel for their admirable written and oral submissions, which have been of great value and assistance to me.
Issue 1 – the notification and general consultation  issue
 16.	As I have already explained under Section 23 (2) of the 1984 Act, it is provided that a local traffic authority “shall give public notice of that proposal”. The defendants do not dispute the contention of the claimant that as well as having this statutory obligation, they also had a duty to consult with affected local residents and this obligation arose from their established practice.  The significance of this is that if there was a duty to consult with those affected local residents, the defendants must have also have been a duty to notify them so that they could participate in the consultation process.
17.	The existence of this duty to consult local residents is demonstrated and acknowledged by the defendants in a number of different ways. It is desirable to consider the ways in which the defendants describe this duty in order to obtain assistance in seeking to define its scope and extent.  First, in their document entitled “Review of decision on St. Margaret’s Road crossing scheme” dated 20 March 2000, the defendants explain with emphasis added that it “is also normal practice to consult affected residents”. 
18.	Second, it is also noteworthy that in the defendant’s interim transport plan 2000/2001, there are statements encouraging readers, such as the claimant who bought and read it, to believe that the defendants would consult with local residents.  So in paragraph 9.1 which deals with safer routes to school it is stated that “public consultation is a long established policy with the London Borough of Richmond-upon-Thames”. Indeed in their response to the N461 in this case, the defendants do not dispute there was in the circumstances of the case “a duty to consult with affected local residents”(emphasis added).
19.	More specifically, the conduct of the defendants in relation to the proposed crossing (such as by putting notices on lampposts in St. Margaret's Road) illustrates that their understanding of their duties to consult “affected local residents” would extend not only to those who live there but to those who use this part of St. Margaret's Road.  This acceptance of the need to consult and therefore to notify local residents is fortified by the fact that it appears to be common ground that Mr. Head of the defendants was initially enthusiastic about having a pre-decision meeting between residents and council officers to discuss the proposals prior to the Sub-Committee meeting on 27 June 2000. It seems clear that there was a duty to notify and consult affected local residents, who either live in or use St. Margaret’s Road but especially those who lived in the immediate vicinity of the proposed crossing and the proposed road changes. Nevertheless those who would be most affected by the toucan crossing were those, who lived almost outside it in the odd-numbered houses between 81 and 91 St. Margaret’s Road and their position requires special attention.
20.	The defendants drew my attention to R v Secretary of State for the Environment, ex parte Kent [1988] JPL 706 in which Pill J dismissed a planning appeal as it had not been brought within a prescribed time period but he also said that on the facts in that case, there was no duty to notify.  The present case is totally different as in the present matter there is a statutory duty to notify which was, as I have shown, fortified by a clearly stated and representation by the defendants to do so. 
21.	It is important to stress that an important ingredient of the obligation to consult is the need to give those who have a right to be consulted sufficient information. The classic and widely accepted statement of the basic requirements of consultation was first formulated by Mr, Stephen Sedley QC, as he then was, in argument in, and was subsequently adopted by Hodgson J in his judgment R v Brent London Borough Council ex p Gunning (1985) 84LGR 168 at 189 and the statement was that:
“First, that the consultation must be at a time when proposals are still at a formative stage.  Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.  Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals”.  
More recently in R v Camden London Borough Council ex parte Cran (1995) 94L.G.R. 8, 38, McCullough J explained that:
“The duty to consult may be imposed by statute or may arise because the parties to be consulted have a legitimate expectation of consultation which arises either from a promise or for an established practice of consultation.  What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can, however, be stated.
 The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative state; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision”. 

22.	As the claimant contends that the Defendants failed in their duty to notify the appropriate residents, I must now consider how the defendants sought to fulfil these obligations. The defendants sought to notify the residents by placing notices in newspapers, mailing residents and placing notices on lampposts. 
23.	Before dealing with these allegations, it is convenient at this point to deal with a submission made by the claimant in the light of the fact that she herself was properly notified as she had received a letter setting out the details of the Toucan crossing; so she was able to, and did, make cogent and detailed submissions on the proposals. It is contended on her behalf that this does not prevent her pursuing a claim for judicial review because there were other residents, who should have been but were not actually consulted and notified. The effect of such failure is, as Latham J explained, that “others who were affected were not in a position to provide any support for [the claimant] with representations of their own which could have materially affected the strength of any representations which she herself might have made” (R. v Lambeth London Borough Council, ex parte N [1996] ELR 299, 311). 
24.	I did not understand the defendants to dispute this contention, which I accept but it will only assist the claimant if she can establish that the defendants acted wrongfully in failing to notify and consult others, who should have been notified and consulted.
25.	I now turn to the complaints of the claimant, which are that the notification in this case by the defendants of the details of the proposed Toucan crossing suffered from two flaws, namely that there was inadequate mailing of local residents and the late posting of the notices concerning the Toucan crossing. The defendants dispute these allegations and contend that they also took other steps to notify and I shall have to consider them as well
Inadequate mailing to local residents
26.	The claimant contends that the mailing of the proposals was carried out in such a way that many local residents did not receive notification from the defendant of its proposals.  The first mailing letter (“the first letter”) was posted through the claimant’s external letterbox on 4 March 2000 with the deadline for responses being stated to be 20 March 2000.  Although there were four flats in that building, only one letter was posted through the external letterbox and as the claimant was the first person to reach the post that morning, she picked up that letter.  
27.	She discovered that of her neighbouring houses, namely those numbered 81-91 St. Margaret’s Road, each house only received one copy of the first letter as only one copy had been put through each external door despite the fact that each of the buildings contained four separate households with the exception of No.89 which had three properties and No. 81 which consisted of one residence.  In addition, the basement flats in these houses have separate letterboxes, which were missed altogether as were the two flats whose doorway is behind No. 89 despite clear markings indicating their existence.  It seems that no other households received the first letter despite the potential for their occupants to be affected by the proposals.  In any event, the copies of the first letters were not in envelopes and so might easily have been discarded as or with unsolicited junk mail, which, the claimant explains, is received in abundance.
28.	The claimant and several of her neighbours complained to a Council officer, Mr. Troke, about the inadequacy of the mailing of the first letter. He was approached, as the person named as the contact official by the defendants in the first letter, Mr Head, could not be contacted by the claimant, who was told that he was on holiday.  In their report, the Review Panel, which was examining the procedure adopted after complaints had been made, accepted rightly in my view that the initial mailing of the first letter in this case was “unfortunately rushed”. It was also disorganised and unsatisfactory as it failed to achieve its purpose of notifying those affected and, in particular those who lived between 81  
29.	The defendant arranged a second mailing letter (“the second letter”) dated 8 March 2000 and this contained a simplified plan and information regarding the Toucan crossing.  Some of the faults of the first letters were repeated.  One copy of this document was posted through the communal external letterbox of the claimant’s building, even though there were four flats in that house.  The claimant was the first person to reach the post on that morning and when she picked it up, she noted that the deadline for comments had been extended to 27 March 2000.  It seems that despite the complaints concerning the mailing of the first letter, the mailing of the second letter suffered from the same deficiencies as those in the earlier mailing with only one copy of it being posted through each communal external letterbox of the odd-numbered houses in the group between 81 and 91 St. Margaret’s Road, but the mailing of the second mailing took place over a wider area. 
30.	Although in a witness statement served on behalf of the defendant, Mr. Chesman, one of their solicitors, said that all those within the boundaries of a map covering this wider area received a copy of the second letter, he has no personal knowledge of this fact and there is powerful contradictory evidence. The Review Panel of the defendant explained that there are no guidelines as to the area to be covered by personal notification and concluded, “there is no record to identify whether every property within the identified boundary received its own copy”.  The evidence shows that the distribution was seriously defective in the way alleged by the claimant in her witness statement
31.	It seems that houses in St. Margaret’s Road with one external box but containing a number of flats only received one copy of the second letter per external box and this seriously limited distribution and notification.  It is particularly unfortunate that this occurred in respect of the occupants of numbers 81-91 St. Margaret's Road even though the proposed toucan crossing was on their doorsteps. As a result of the mailing system devised and operated by the defendant, four residents of 81, 83 and 89 St. Margaret’s Road named by the claimant did not receive a copy of either the first or the second letters. In addition, the claimant has adduced cogent evidence to show that some people, who fell within that boundary of the map which according to the defendant marks the boundaries of the second mailing, have told her, as appears to be the case, that they did not receive a copy of the second letter and some of those were not included in the mailing of the first letter The defendant are not in a position to dispute these assertions, which I have no reason not to accept. So it seems that there were serious and repeated deficiencies in the delivery process for both the first and second letters and I will have to return to consider the consequences of this.
32.	The claimant also complains that outside the boundaries of the purported mailing area of the second letter, there existed a wider group, who should have been, but was not, notified.  She explains that the original request for the crossing came from a parent of a child attending Orleans Infants’ School.  This school is located south of the St. Margaret’s Road and it has a catchment area which includes a large residential area north of St. Margaret’s Road; this is substantially greater than the area receiving the first and second letters.  So it is said that even if the second mailing had been effective, it would have excluded a wider user group affected by the proposals, including parents of children attending Orleans Infants’ School and Orleans Park (Secondary) School.  The claimant says, as I believe to be the case, that the defendants are likely to have received representations from some of those people as they had an interest in the project and who would have been affected by it.
33.	The claimant also points out that there are local playgroups to which parents accompany children and which are in the vicinity of the proposed toucan crossing.  The claimant also gives other instances of local residents who complained that they did not receive a letter and did not make representations to the Council.  Five of those live in St. Margaret’s Road and one lives nearby and it is important  that they say that they would have made or, in the case of one person and one couple, would probably have made representations had they been consulted.  I will consider the consequences of this defective distribution in due course when I have looked at the way in which the defendant sought to notify in other ways.
Posting of site notices
34.	Site notices under section 23 of the 1984 Act were posted on the road in question and they were dated 10 March 2000 but they were only posted on two lamp posts in St Margaret’s Road on 28 March 2000, which was the day after the deadline for comments. Although earlier in the proceedings, there was some doubt about the exact date of posting, it now seems clear that they were posted on that date. Mr. Chesman for the Defendants says in his witness statement that “it is regretted that the notices attached to the lampposts were displayed one day after the expressed consultation date“. He explains that those responses received late by the defendants would still be considered. That might be so but I agree with the claimant that readers of the site notices would have been discouraged from making representations as the notices stated that the time for making representations had expired and that they would have had no reason to believe that there would have been any point in making any representations after the due date.
35.	The defendant relies not only on the first and second letters and on the public notices as satisfying their obligation to notify and consult, but also on the advertisements that they placed in local newspapers as showing that they notified and consulted those, who should have been notified and consulted. Notices were placed in paid local newspapers on two occasions.
36.	In the first notice dated 10 March 2000, the Council merely notified readers that “they propose to introduce a new toucan crossing facility between the junctions [of St. Margaret’s Road] with The Barons and Baronskill Road” and that notice referred to section 23 of the Act. It does not identify the precise location of the crossing or the ability or right of readers to make any representations to the defendant concerning the proposal or that any such representations would be considered by the defendants.
37.	Both these omissions are significant as notification and consultation entails giving those notified  “sufficient reasons for any proposal to permit an intelligent consideration and response” in the words of Mr Sedley QC which I have already quoted or “information which is accurate to enable them to make a meaningful response” in the words of McCullough J, which I have also cited. In this case, the information communicated was totally inadequate  notification for the purpose of consultation as the first notice did not give, as I have explained, any sufficient details of the location. Second, by failing to invite responses, the notice was, at best notifying readers but it suffered from the major flaw that it was not inviting comments, which must be an essential pre-condition or ingredient of the consultation process.
38.	The second notice in newspapers was more specific and it is likely to have been inserted sometime after 24 March 2000.  It gave details of the nature of the road works that were proposed to be done stating that copies of the proposed order, the defendant's statements of the reasons for proposing to make the order and a plan could be inspected during working hours at the council’s offices.  It also stated that anybody desiring to object to the proposal should write to the defendant within 28 days of 24 March 2000 giving the grounds of their objection. Significantly, the second notice did not refer to the toucan crossing at all but this was not surprising as the notice was issued under Regulation 6 of the 1976 Regulations, which deals with road works whereas, as I have already explained, the statutory provision dealing with the Toucan crossing is contained in section 23 of the Act. The second notice does not notify or seek views on the Toucan crossing and, to that important extent, it did not fulfil a role in the notification and consultation process concerning the toucan crossing. 
39.	For there to be effective notification for the purposes of consultation, there has to be, first a sufficient description of the project for the party receiving the information to be able to decide not only whether he wishes to respond but also in the words of Mr. Sedley QC “to permit an intelligent consideration and response”, second an invitation to make responses and third, as Mr. Sedley Q.C., as he then was, said “adequate time for consideration and response”. In the present case, none of the notices, whether on the road or in the newspaper, referred to each of the three of the important ingredients of effective notification and consultation, namely first the nature and the precise location of the toucan crossing, second the right to make representations in respect of it and finally the communication of this information in sufficient time and in a suitable way so as to encourage or not deter responses.  Each of these matters is required for effective notification and so the defendants cannot rely on the street or newspaper notices individually or cumulatively as constituting adequate or proper notification.
40.	The defendant also relies on the fact that they notified various interested groups.  These included the defendant’s Traffic Management Liaison Group, which represented local bus companies and the emergency services.  The Cycling Liaison Group was notified, as was the Twickenham Park Residents Association, which supported the Toucan crossing project although it appears that its Chairman now regrets sending the letter of support.
41.	In this case, I believe that there are valid and serious criticisms that must be made of the notification process adopted by the defendant. I have already outlined the way in which the two letters were distributed and that many people who lived next to or very close to the proposed site of the Toucan crossing did not receive them.  The claimant has in her second witness statement given many examples of people living within a very short distance of the proposed crossing who did not receive either the first or the second letters. It does not surprise me that many of the residents of the houses adjoining the proposed crossing did not receive either the first or the second letter as it was an inevitable result of the defendant’s decision to send only one copy of the letter to each house even though it was known to the defendant or should have been known to them that there were several households within each house. The duty to notify interested parties carries with it an obligation to take reasonable steps to ensure that those interested parties are so informed. I am particularly troubled about the failure to notify some of those living in the odd-numbered houses between 81-91 St. Margaret’s Road, which were living only yards away from the proposed Toucan crossing and who, for the reasons that I will develop, would be seriously affected by it and yet they did not receive a copy of either the first or the second letters.
42.	In this case, the defendant’s efforts to notify by the first and second letters fell far short for many reasons especially with regard to those people who lived in St. Margaret’s Road. First, I agree with Councillor Mann, who said on 29 March 2000 that” where there are x flats, x copies should be put through the letter box” and no cogent reason has been put forward as to why this could not have been done or was not done on either mailing, especially in the houses adjacent to or bordering on the proposed crossing in the house at 81-91 St. Margaret’s Road.
43.	Second, it seems that there were other defects in the mailing system as there were those within the boundaries selected for the delivery of the second letter who did not, in fact, receive them. Surprisingly and unfortunately, no records of the defendant are available of the instructions actually given by the defendants to the distributors of the first and second letters or the records relating to such distributions. I conclude that many people, who live in St Margaret’s Road and very close to the crossing and would be affected by it in the ways that I have indicated did not receive any notification of the proposed Toucan crossing in either of the letters or, for the reasons that I have given, through the newspaper or street notices. For the reasons that I have given none of these measures taken by the defendant either individually or cumulatively constitute a discharge of their duties to notify those living in St Margaret’s Road close to the proposed Toucan crossing. 
44.	The defendant disputes the claimant’s contention that they failed in their duty to notify and consult.  In order to appraise the validity of the complaint it is necessary to ascertain what constituted adequate notification in the particular circumstances of this case. It is clear that little assistance in resolving this can be derived from the wording of the statutory obligation on the local authority which was to “give public notice of that proposal” as it is neither qualified nor expanded upon in the Act nor in any subordinate legislation. Similarly, the expectation of “affected residents” of being consulted and consequently of being notified is general in scope and is not specifically defined. The claimant considers rightly in my view that what constitutes reasonable notification in any particular case must be considered in the light of all the relevant circumstances and I will now consider them.
45.	The first factor of importance in determining the extent of the duty is that the aim of the project to construct this toucan crossing and to carry out the other road works was to improve traffic control for the benefit of the local residents as well as the other users of St, Margaret’s Road and the adjacent roads. In other words, the purpose of the defendant in putting forward this project was to improve the lives of the inhabitants of and of users of those roads. Thus, the views of this group would have been of particular importance in ascertaining if that objective would be achieved or how it could be best achieved. 
46.	So the opinions of the inhabitants of and users of those roads would be much more relevant and pertinent for the defendants in considering this type of proposal than say, for example, an application by a developer to add an additional storey to some existing premises. This factor would suggest the need to ensure that those most directly affected by those proposals had to be consulted and that means the need to ensure that they have been notified.
47.	Second, the lives and house values of many living in St. Margaret's Road in the group of houses by the proposed Toucan crossing would be affected by its presence outside or very close to their homes as the crossing is likely to cause cars to have to stop or to slow down at the crossing; this in itself would cause more noise than ordinary passing traffic.  In addition, the Toucan crossing would by its very presence attract to it many cyclists and pedestrians, who were wishing to cross the road and who would be attracted to the crossing. This would lead to substantially increased noise for those living close to it in 81-91 St. Margaret’s Road and in the immediate area.. Third, and more generally, the proposed scheme changed radically a complex situation where five side-roads cross one of the borough’s secondary roads and a bus route. The changes would affect users of these roads, whether drivers, cyclists or pedestrians.
48.	The defendant contends that when deciding the scope of the duty to notify and consult in this case, I should bear in mind that this was a relatively small project costing merely £50,000 and that this indicates the lack of importance of this project with the result that the obligation to notify was limited.  I do not regard cost as being of crucial importance because, for example, a proposal that a barrier should be constructed across a major road preventing access to many existing users of the road might not cost much but it could, in some cases, have very significant consequences for many who live, travel and work nearby. In any event, the cost of a project is only one factor to be taken into account in considering the nature and extent of the obligation to notify but in the context of this case, it is overridden by the factors, to which I have already referred as the nature of the duty to notify and consult importance has to be considered with regard to the impact of the project rather than its cost.  As I have said the impact would be very substantial for those who lived in 81-91 St. Margaret's Road and in the neighbouring area.
49.	I turn to see if there has been compliance with the duty to notify. I agree with the defendants that they should not be penalised merely if somebody could be found by the claimant, who should have been, but was not notified. In this case, I regard the defendant’s failure to notify many of those living in close vicinity to the crossing and in particular those living between 81-91 St Margaret’s Road as being a serious breach of the defendant’s obligations to notify. These people fell clearly within the category of affected residents who the defendants were obliged to notify and consult. 
50.	 As I have explained the existence of this crossing would have affected the use, value and enjoyment of their homes and the adjoining area although in essence, there has been a clear wish on the part of the defendants to notify those living in the immediate vicinity of the crossing.  As a result of errors in implementing the policy to notify, those who lived in 81-91 St. Margaret's Road should have been notified but as I have shown, the defendants failed to do so.  If I had any doubts about this, I would have reached the same conclusion by considering other defects in the notification process, which I will now outline.
51.	I also believe that those who do not live in 81-91 St Margaret’s Road but within the area intended to be covered by the mailing of the second letter had a right to be notified but the defendants failed to comply with their obligation to notify those who did not receive the first or second letters. I do not know how many fall into this category  but it seem from the claimant’s second witness statement, that there are some .This group did not receive either letter and again for the reasons that I have given, the defendants cannot contend that either the newspaper advertisements or the street notices were sufficient and alternative notification.
52.	In addition, I also believe that the failings in the street notices means that those, who lived outside the immediate vicinity of 81-91 St. Margaret's Road but who used St Margaret’s Road regularly, fall within the group who should have been consulted; unfortunately, they also would not have had the opportunity for commenting as they would not have been properly notified. I apprehend that the purpose of putting up street notices on about 28 March 2000 was to draw to the attention of this group the precise plans for the Toucan crossing and this what should have been done at an earlier stage so as to give this group an opportunity of commenting but, as I have explained, this was a futile exercise in this case as inadequate time was given and the practical effect of this was that this group lost their right to be consulted and I regard this as a further breach of the defendants’ obligations.
53.	By not notifying each of these groups and, in particular those who lived close to the proposed Toucan crossing, the Defendants did not deprive the claimant of the chance to make representations but she lost the opportunity of obtaining support from those who, I have held, should have been but were not consulted. I cannot accept the submission of the defendants that “the mere fact that a greater number of people might have made the same points is of very little significance”(paragraph 12 of the skeleton).
54.	 I do not know what those who should have been but were not notified and consulted, would have said; indeed they might have come up with a mutually acceptable alternative. In any event, as was explained in Wilson v Environment Secretary [1973] 1 WLR 1084 at 1096 by Browne J., a party  “suffers substantial prejudice if his interests require that representations should be made by someone and other people who would make such representations are deprived of the opportunity of so doing ”. That is just what happened here with the claimant being the party deprived.
55.	The defendants contend that, in the words of their skeleton, “the notification process had been successful as a large number of people were aware of the proposal” and, as stated in paragraph 6 of the defendants’ response to the grounds upon which relief is sought,  “the number of responses received and the breadth of the issues covered demonstrate the extensiveness of [the publication]”.
56.	I cannot accept this submission as it merely shows the significance of the proposals but it cannot overcome the point that many people, who should have been notified, were not and so they have been deprived of the opportunity of making thoughtful and cogent submissions. So far as the claimant is concerned, as a result of the defective execution of the notification procedure she has been deprived of the opportunity first of obtaining support which, in the words of Latham J which I have already quoted “could have materially affected the strength of any representations which she herself might have made” and second of others advocating alternative measures, which might have influenced the defendants’ decision.  I will return to consider the effect of this decision when I consider the last issue.
Issue 2 – the consultation issue
57.	The claimant’s complaint is that she and other residents had a legitimate expectation of a pre-decision meeting with council officers to discuss the proposals before the Sub-Committee met on 27 June 2000.  The claimant explains that during the course of a discussion with Mr. Christopher Head of the defendants in the week commencing 20 March 2000, she offered to assemble a group of residents who were representative of users of St. Margaret's Road.  The claimant says that Mr. Head was “enthusiastic at first” and as a result, she began to discuss the meeting with various neighbours and she made arrangements with her local publican at the St. Margaret's Road public house for an assembled group to use the back bar area at any time when there was not a televised football match.   Subsequently when the claimant contacted Mr. Head again, he told her that he had been informed that the meeting should not go ahead as it would be of “limited value”. 
58.	In his witness statement, Mr. Chesman of the defendants explains that “after initially agreeing to a meeting, Mr. Head states he was advised by senior officers that [such a meeting] would be more beneficial when the consultation results had been fully analysed and any amendments incorporated into the scheme and that this was more likely to be after the Committee meeting had been held”.
59.	The defendant contends that these events did not give rise to any legitimate expectation, as there was no clear and unequivocal statement by Mr. Head that such a meeting would be held.   The defendant says there are obviously administrative difficulties if every time an officer indicates “enthusiasm” for an idea, it can give rise to a legitimate expectation, which itself is subject to judicial review.
60.	I do not believe that these matters relied on by the claimant give rise to a legitimate expectation.  It is settled law that for such an expectation to arise, an applicant has to prove that there has been representation that was “clear, unambiguous and devoid of relevant qualification” (per Bingham LJ in R v Inland Revenue Commissioners, ex parte MFK [1991] 1 Weekly Law Reports 1545 at 1570 and followed by Simon Brown LJ in R v Devon County Council, ex parte Baker [1995] 1 All. ER. 73 at 88-90).  A statement of enthusiasm is a long way short of the clear and unambiguous representation referred to by Bingham LJ, as it does not amount to a commitment on the part of the defendants to hold or attend a meeting.
61.	In answer to that point, the claimant relies on the subsequent comments of Simon Brown LJ in R v Inland Revenue Commissioners ex parte Unilever Plc ([1996] STC 681 at 694) in which he said that: 
“to confine all fairness challenges rigidly with a MFK formulation – requiring in every case an ambiguous and unqualified representation as a starting point – would to my mind impose an unwarranted fetter upon the broader principle operating in this law: the central Wednesbury principle by which an administrative action is unlawful if “so outrageous in its defiance of logical and accepted moral  standards that no sensible person who had applied his mind  to this question to be decided could have arrived at it (see Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 410 per Lord Diplock)”.
59.	I do not believe that this comment is of any assistance to the claimant in this case because the decision not to hold a meeting is not “so outrageous in its defiance of logic or accepted moral standards”.  The stark fact is there had not been an appropriate representation made by the defendant here and so there cannot have been a legitimate expectation of this meeting.
60.	Even if I was wrong on that point, there are other difficulties confronting the claimant in satisfying the second requirement of a legitimate expectation, which is that it must be legitimate or reasonable in the circumstances.  I do not believe that is the case in relation to the suggested meeting with residents here because, as Miss Lieven explained, there are obviously administrative difficulties if every time an officer indicates “enthusiasm” for an idea, that fact can give rise to legitimate expectation, which is, if not complied with, subject to judicial review. 
61.	This suggests that the expectation of a meeting was not legitimate or reasonable and this view is reinforced by the facts of this case as the claimant herself had been given every opportunity to communicate her views on the scheme to the relevant people within the defendant council.  She wrote, as I have indicated, a very clear and cogent letter expressing her views and also had telephone conversations with the officers in question while later in the process, she ultimately addressed the committee meeting. 
62.	A further difficulty for the claimant might have been the need to establish reliance on the representation before a legitimate expectation can be shown (see R v Leicestershire C.C., ex parte Powergen UK [2000] JPL 629 at 639 and upheld by the Court of Appeal [2000] JPL 1037 at 1043) but in the light of my conclusions on other aspects of the requirements for a legitimate expectation, it is unnecessary for me to comment further on this.
63.	Another criticism made by the claimant under this head is that there were a number of E-mails and letters from local residents, which went unanswered.  Foremost amongst this was the claimant’s thoughtful and detailed letter of 26 March 2000 together with annexes.  I do not believe that it is an ingredient of consultation that all representations should be specifically answered. In fact, all that is required is that “the consulting party must consider the responses with a receptive mind and in a conscientious manner when reaching its decision” (per McCullough J in R v Camden London Borough Council ex parte Cran (1996) 94 LGR 8 at 38 or “the product of the consultation must be conscientiously taken into account in finalising any proposals” (per Hodgson J in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 at 189). As I will show later in this judgment, there is nothing to suggest that this was not done here, particularly as the objections were mentioned and summarised in Appendix A of the report
Issue 3 – The adequacy of the report
64.	The thrust of the complaint is that the report of the sub-committee was inaccurate and that this prevented there being a fair and effective consultation or alternatively that the contents of the report were such that it resulted in the sub-committee failing to take into account material factors.
65.	It is said that the report fails to give any impression that there was substantial and substantive objections and omits to stress the strength of them.  It is contended that the objections by the local residents and their suggestions or alternatives were merely labelled as “concerns”.  It is said that the report did not indicate that the local residents were putting forward constructive alternative proposals, which required consideration by the Sub-Committee before taking the decision which it ultimately did.  Complaint is also made that the main trends of the comments was not included in the body of the report but in the appendix, which, it is said, misrepresents a number of responses and does not report at all certain relevant matters.
66.	In support of this ground, the claimant draws attention to comments made by McCullough J in ex parte Cran (1996) 94 LGR 8 at 73 when he explained that:
“Members rely on officers to produce fair, accurate and objective summaries. It is not sufficient to allow members to ferret out some point of substance or to discover some imbalance in the report from studying an appendix.  One cannot expect perfection in the field of local government administration – or in any other – but affected citizens and representative organisations are entitled to expect objectivity in those whose duty it is to convey to decision-makers what they have suggested”.
67.	I agree with the defendant that the contentions of the claimants do not allege any specific material considerations which were not taken into account and which would vitiate the decision.  In essence, it is no more than a complaint that the report could have said more about the objections, as it did not give full details of the objections, which were buried in an appendix.
68.	I have had an opportunity of reading the report and have noted that it sets out considerable details of the objections at appendix A together with a response to each comment. The mere fact that these objections are called “concerns” does not seem important as it is clear from the nature of the comments in the appendix that they were essentially objections or suggested alternatives.  The body of the report sets out the views of the officers of the defendants on the principal points raised.  This is simply not a case where the members were left to “ferret out some points of significance or discover some imbalance in the report and studying an appendix”.  It was all clearly set out in the appendix, which is clearly sign-posted . Significantly, the recommendation to the committee in paragraph 2.1 of the report is to “note the results of the public consultation outlined in Table 1 of Appendix A of this report”. The consultation exercise together with the appendix is also referred to again in paragraph 3.11. So there are two prominent references to the appendix in the report, which was only four pages in length.
69.	In reaching the decision that there is no validity in the complaint about the contents of the report, I respectfully agree with Sullivan J’s comments in R v Mendip District Council ex parte Favare [2000] JPL 810 where he explained at page 821 that reports of a planning officer to a committee are “addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background”. He continued by saying of such  reports that:
“its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application.  It is not addressed to the world at large but to Council members who, by virtue of that membership, may be expected to have substantial and local background knowledge.  There would be no point in a planning officer’s report setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material.  Part of a planning officer’s expert function in reporting to a committee must be to make an assessment of how  much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail”.
70.	Later in his judgment, Sullivan J said at page 824 that,  “it is important that the obligation to take into consideration all relevant considerations is not converted into a counsel of perfection for planning officers’ reports”.  I was left with the clear view that the claimant’s criticism in this case do, in fact, amount to a counsel of perfection and this point is illustrated by the lack of any major matter which it is alleged not to have been dealt with in the report.  My clear view from reading this document is that it does provide a fair, accurate and objective summary taking into account the background and factors that have been stressed by Sullivan J.  I therefore do not believe that there is any validity in the complaints under this issue.
Issue 4 – the Sub-Committee meeting issue
71.	The thrust of this complaint is that the conduct of the sub-committee meeting prevented there from being a fair and effective consultation.  The claimant contends that the members of the sub-committee showed little interest in what the local residents had to say.  It is said that the questions to residents from members of the sub-committee focused upon an irrelevant issues rather than on the merits of the proposal put forward by the officer.  It is argued that little, if any, relevant consideration was given by the members who made up the Sub-Committee to the proposals and even less to the objections made by the residents.  The debate was said to be very brief and the extracts from the Sub-Committee  notebook suggest that the proposal and the objections to it were not given detailed consideration.
72.	The claimant also contends that she and other residents were unable to obtain copies of the agenda which included the report despite the fact that one resident had gone to the defendant’s offices earlier in the day to try to obtain one but was unsuccessful.  Thus it is said that the representations that they were able to make could not be directed to the advice that had been given to the Sub-Committee and which provided the structure for the decision-making process with the result that the claimant and others could not point out the deficiencies in the report, and which I have already considered under Issue 3.  Put in another way, it is contended that the claimant did not know the case that they had to meet and this was particularly important as the residents only had three minutes in which to make their speeches.
73.	Another answer to the complaints of the claimant is that the Defendant explains correctly in my view that members of the Transport Sub-Committee, who have experience in matters of this nature, had received and read the reports in advance. So they would have been familiar with the facts and issues. It seems that the Committee asked a reasonable number of  relevant questions before debating the issue and making a decision. The Committee Clerk ‘s note of the meeting show that the claimant and three other people addressed the committee and covered safety issues, the merits of the scheme for cyclists, the effect of extending the pavement and other issues. The minutes also show that the issues were debated by the councillors with at least five of them speaking and detailed technical questions were asked of Mr. C.A. Smith, a principal highway engineer in the employment of the defendants.
74.	The defendant points out that it is not appropriate to subject the conduct and decision-making of a local authority committee to this form of scrutiny and criticism about its decision-making. As Schieman J was pointed out in R. v Poole Borough Council ex parte Beebee 1991 2 PLR 27at 31 expressed  “grave reservations about the usefulness of this sort of exercise".   I agree but in any event this form of scrutiny does not reveal and significant defects.
75.	The defendants also cannot understand why the claimant could not obtain a copy of the agenda as it had been made available for inspection at public libraries and other council offices since well before the meeting.  In any event, I accept the defendant’s contention that if the claimant had asked the committee clerk at the meeting for a copy of the agenda, it would have been supplied to her.  The defendant also explains that they were only obliged to provide a reasonable number of copies of the agenda in the meeting room at the start of the meeting in accordance with section 100B(6) of the Local Government Act 1972 and that they complied with this obligation. Nothing has been put forward to me which suggests that there has been any breach of natural justice under this head which entitles the claimant to any relief.
Issue 5 – the failure to have regard to material considerations
76.	It is said by the claimant that a safety audit of the proposals was not undertaken until after the time the Sub-Committee had reached its decision and that this omission prevented there being fair and effective consultation.  Alternatively it is contended that it meant that the Sub-Committee failed to take into account material safety considerations.
77.	The position was that the Sub-Committee took its decision to approve the proposals for the toucan crossing and only subsequently was a safety audit undertaken and its report is dated 26 July 2000.  It is said that this audit was relevant to the decision whether or not to approve the proposals and it should have been undertaken and placed before the Sub-Committee before it took its decision to approve the crossing. This point is particularly significant, it is said, as the claimant and other local residents were primarily concerned about the safety of the proposals and put forward alternatives.
78.	In answer, the defendant explains that safety was clearly a material factor which had to be, and was, considered before the decision was taken to proceed with the toucan crossing.  As such, it was dealt with as a significant matter both in the report and in its appendix. It is explained that the reason for the proposal for the toucan crossing in the first place was for safety reasons especially as requests from the public for a pedestrian crossing.  But this consideration of safety factors undertaken before it was decided whether to proceed with the toucan crossing has to be distinguished from the safety audit, which is a check on the safety of the detailed design proposal and is carried out only once the proposal of having this type of crossing had been approved and established.  The defendant says it would be inappropriate to have such an audit carried out before the principle of the crossing had been established. 
79.	They explain that the audit is the last stage in the process and does not deal with issues of principle but it is carried out in order to ensure that there are no major defects but also to fine tune the detailed design.  It is also explained by the defendant that the undertaking of the safety audit is an expensive process, which would not be a justified use of public resources before a decision had been made to carry out the particular project.  Significantly, it does not appear to be disputed that no major safety design defects were identified in the process.
80.	I believe that the defendant was correct and that they had given adequate consideration to safety as appears from the report.  In any event, the safety audit supports the proposal and if it had been produced and made available before the decision was made, it is clear that it would have made no difference whatsoever.

Issue 6 – the relief issue 
81.	I have already found that the defendant acted in breach of their obligations to notify and consult especially by not giving adequate notification, especially to those who lived in the odd- numbered houses in the block between 81 and 91 St. Margaret's Road, which was adjacent to where the toucan crossing was to be placed. I also believe that the defendants ought to have notified and consulted those who lived in the immediate vicinity covered by the plan and those who regularly used the area but did not live there.  In consequence there was not proper consultation.  
82.	The claimant contend that I should apply the principled approach of Bingham LJ (as he then was) in R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344 at 352 and which was subsequently approved by the Court of Appeal in R. v Broxtowe Borough Council, ex parte Bradford [2000] IRLR 329.   Bingham LJ said that:
“While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity.  There are a number of reasons for this:
1. unless the subject of the decision has had the opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance.
2. As memorably pointed out by Megarry J in John v Rees [1970] Ch. 345 at page 402, experience shows that what is confidently expected is by no means always that which happens.
3. It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if a complainant’s position became weaker as the decision-maker’s mind became more closed.
4. In considering whether the complainant’s representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden terrority of evaluating the substantial merits of a decision.
5. This is a field in which appearances are generally thought to matter.
6. Where the decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied.”
83.	In answer to this, the defendant points out that this case is different because the claimant had been given every opportunity to put her case and there is no evidence to suggest that there are other points which could or would have been made.  As I have already indicated, the nature of the prejudice to her is that she was deprived of support of or the benefit of alternative arguments from those, who should have been, but were not, adequately notified and consulted.
84.	I am conscious of the need for me not to stray into what was described by Bingham LJ as “the forbidden territory of evaluating the substantial merits of a decision”. In any event, not only is it not easy to know what case those who should have been, but were not, notified and consulted could or would have put forward if they had been given the opportunity and the chance to do so, but it is not clear what effect it would have had. So applying the test of Bingham LJ, I have reached the clear conclusion that this is not one of those cases which he describes as being of  “great rarity” in which the failure to notify is not unfair but on the contrary this is a case where the decision has to be regarded as unfair and should be quashed on the basis of that test.
85.	Miss. Lieven disagrees with the contention that I should apply Bingham LJ’s test and she pointed out that in Cotton’s case, the Court of Appeal dismissed the appeal from a decision of Simon Brown J in which he said that “to make good a natural justice challenge” an applicant must “establish that there is a real, as opposed to a purely minimal, possibility that the outcome would have been different” (1990) IRLR 344 at page 348).  I believe that this approach was not followed by Bingham LJ whose view was, as I have indicated, that the onus of showing that a decision should be quashed was less onerous and his approach was and has been subsequently accepted and followed by the Court of Appeal.
86.	In any event, even if I am wrong on this and if the test of Simon Brown J is still good law, then in the present case, I believe that there was a real, as opposed to a purely minimal, possibility that the outcome might have been different if the notification procedure had been carried out properly, especially in respect of those living in the odd- numbered houses in the block between 81 and 91 St. Margaret’s Road.
87.	It is noteworthy that in Cotton’s case, there was no substantial chance of any further observation on the applicant’s behalf affecting the final decision.  In that case, Cotton had failed to comply with a warning that he should reduce his weight from 18 stone to 14½ stone in two months and he had only reduced his weight to just over 16 stone. Thus it is easy to understand why Simon Brown J reached the decision that he did.  In the present case, in contrast, there was a real possibility that the outcome would have been different if there had been adequate notification and consultation.
88.	I was helpfully referred to the decision in the Divisional Court in R v Secretary of State for the Environment, ex parte Brent London Borough Council [1982] 1QB 593 where the Divisional Court was dealing with a case where a Minister had refused to hear further representations and Ackner LJ giving the judgment of the court explained at page 647 that 
“it would of course be unrealistic not to accept that it is certainly probable that, if the representations had been listened to by the Secretary of State, he would have nevertheless have adhered to his policy.  However, we are not satisfied that such a result must inevitably have followed .. ..It would in our view be wrong for this court to speculate as to how the Secretary of State would have exercised his discretion if he had heard the representations …. we are not prepared to hold that it would have been a useless formality for the Secretary of State to have listened to the representations..”
89.	Subject to the fact that the defect in the present case relates to notification and consultation and not considering representations,  I find myself in a very similar position to that described by Ackner LJ.. In particular,  I do not think that it would have been “a useless formality” for the council to have notified and listened to the representations from those who were not notified properly.  I reach that conclusion individually in respect of each of the three groups that I had said were not notified but, in particular, in respect of those living in the odd- numbered houses between 81-91 St. Margaret's Road which is the same block as the claimant.  So in spite of the cogent submissions of Miss Lieven, I quash the decision.
. 
***********************

MR JUSTICE SILBER:  I hope you have had an opportunity of seeing the draft of the judgment.  Are there any comments that you have to make on it – typographical or other errors?  
 
MISS LIEVEN:  My Lord, I have noticed a number of typographical errors.  Unfortunately, I have not been in a position to prepare a schedule of them.
 
MR JUSTICE SILBER:  Could you let me have a copy of that?  
 
MISS LIEVEN:  My Lord, yes, certainly.  My Lord, perhaps Miss Olley and I could agree a schedule.  
 
MR JUSTICE SILBER:  That would be very helpful.  
 
MISS LIEVEN:  I know that we have both noted a few errors and if we can agree it then your Lordship can have an agreed schedule.  
 
MR JUSTICE SILBER:  As I had not heard from you, I thought that there were none.  
 
MISS LIEVEN:  I am sorry, my Lord.  We got it rather late.  
 
MR JUSTICE SILBER:  In those circumstances I will consider those amendments and I will quash the order.  
 
MISS OLLEY:  My Lord, I would ask for an order that the defendant do pay the claimant's costs, to be subject to detailed assessment if not agreed.  
 
MR JUSTICE SILBER:  Yes.  I have been given a very detailed document.   

MISS LIEVEN:  My Lord, as far as the principle of detailed assessment is concerned, although this is a case that would normally be appropriate for summary assessment, because this is what I would describe, accurately, as the enormous claim by the claimant ‑‑ 
 
MR JUSTICE SILBER:  What, for costs?  
 
MISS LIEVEN:  ‑‑ for costs, Mr Maurici and I agree that, in general, the matter should go for a detailed assessment.  
 
MR JUSTICE SILBER:  I agree.  That seems very sensible.  
 
MISS LIEVEN:  My Lord, there are two points of principle in respect of costs which, in my submission, your Lordship should deal with.  I should start by saying that the principle that some order should be made in the claimant's favour, we accept.  However, there are two points which we do raise before your Lordship: first of all, in respect of the insurance premium claim; and secondly, I will be asking for an order that your Lordship should apportion costs.  May I deal with the insurance premium first?  
 
MR JUSTICE SILBER:  Is Miss Olley in a position to deal with these points today?  
 
MISS OLLEY:  Yes, my Lord.  
 
MISS LIEVEN:  My Lord, so far as the insurance premium is concerned, your Lordship will see on the last page of the claimant's statement of costs that there is a claim for an insurance premium to Litigation Protection Ltd, conditional fee protection plan, for £5,244.75.  My Lord, that is a very high premium given that the total statement of costs that my client had prepared, if we had been successful, was only £6,500.  But, my Lord, the point of principle is that your Lordship may be aware that there are very detailed rules, which I will take your Lordship through, as to the circumstances in which this type of insurance premium could be recovered from an unsuccessful party.  
 
MR JUSTICE SILBER:  I have not had to deal with those rules before.   

MISS LIEVEN:  I will take your Lordship through those.  It is our case in a nutshell that the requisite notices have not been served and in those circumstances this sum is simply not recoverable.  
 
MR JUSTICE SILBER:  Is there a dispute on this?  Do you say the notices have been served?  
 
MISS OLLEY:  My Lord, our submission would be that the sum should be recoverable.  
 
MR JUSTICE SILBER:  Is the position so far as notice is concerned, they should have been served before the matter started, or is it something which can be remedied now?  
 
MISS LIEVEN:  No, my Lord, it cannot be remedied now.  They should have been served in writing at a point and they were not.  My learned friend will rely on oral notice in a telephone conversation, but I hope to show your Lordship that the rules simply do not provide for that.  Written notice has to be served in accordance with the rules or the sum is simply not recoverable.  
 
MR JUSTICE SILBER.  Right.  So that is point 1?  
 
MISS LIEVEN:  My Lord, that is point 1.   Can I take your Lordship through that?  A sum such as this is described in section 29 of the Access to Justice Act ‑‑ 
 
MR JUSTICE SILBER:  Which book are you looking at?  
 
MISS LIEVEN:  My Lord, I am looking at Volume 2 of the White Book, and your Lordship will also need Volume 1.  
 
MR JUSTICE SILBER:  Volume 1 of the Autumn 2000?  And the other is Volume 2?  
 
MISS LIEVEN:  Volume 2, but we only need Volume 2 for one short reference.  I can read it to your Lordship.  
 
MR JUSTICE SILBER:  I have three Volume ones, but no Volume two.  
 
MISS LIEVEN:  If I can refer your Lordship to section 29, I will read it and then if necessary, I will hand it up.  Section 29 of the Justice Act 1999 provides:  

		"Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy."  

So in theory the sum is recoverable, but subject to the rules of court.  
 
Then, my Lord, the relevant rules of court are all in volume 1 of the White Book.  Could I ask you to look at that: "A funding arrangement" is defined in CPR 43.2.  That is at page 764 of volume 1.  43.2(k) reads:  

		"'funding arrangement' means an arrangement where a person has ‑‑ 

			....  
 
			(ii) taken out an insurance policy to which section 29 of the Access to Justice Act 1999 .... applies;...."  

That is why I read to your Lordship section 29.  Then, my Lord, in the Practice Direction at page 803 ‑‑ right at the bottom of page 803 – your Lordship should have section 19.1.  
 
MR JUSTICE SILBER:  This is the Access to Justice Act, is it?  
 
MISS LIEVEN:  No, my Lord, this is the Practice Direction to the Civil Procedure Rules.  Your Lordship can see that from the note on the right‑hand side 44PD.  
 
MR JUSTICE SILBER:  I see.  
 
MISS LIEVEN:  19.1 reads:  
 
		"A party who wishes to claim an additional liability in respect of a funding arrangement must give any other party information about that claim if he is to recover the additional liability.  There is no requirement to specify the amount of the additional liability separately nor to state how it is calculated until it falls to be assessed."  
 
That is reflected in the rules and then the rules are set out.  
 
MR JUSTICE SILBER:  So it does not say anything about writing?  
 
MISS LIEVEN:  My Lord, I am going to take your Lordship to that.  
 
MR JUSTICE SILBER:  Yes.  
 
MISS LIEVEN:  19.2 reads:  
 
		"(1) In this paragraph, 'claim form' includes petition and application notice, and the notice of funding to be filed or served is a notice containing the information set out in Form N251.  
 		(a)	A claimant who has entered into a funding arrangement before starting the proceedings to which it relates must provide information to the court by filing the notice when he issues the claim form.  
 
		(b)	He must provide information to every other party by serving the notice.  If he serves the claim form himself he must serve the notice with the claim form.  If the court is to serve the claim form, the court will also serve the notice if the claimant provides it with sufficient copies for service."  

My Lord, the final rule I need to take your Lordship to ‑‑ 
 
MR JUSTICE SILBER:  You say that they have to serve the information in the notice?  
 
MISS LIEVEN:  They have to serve us with a notice and we say such notice was not served providing information of this funding arrangement.  My Lord, I should make it clear that another aspect of the very high application for costs is that there was a conditional fee arrangement, which was also a funding arrangement, and I believe that notice was served in respect of that.  So your Lordship should not be as it were confused by the fact that my learned friend may refer to a notice being served.  It was not a notice, as I understand it, in respect of the insurance premium.  
 
MR JUSTICE SILBER:  Just a moment.  (Pause).  Yes.  
 
MISS LIEVEN:  Then the mandatory requirement, my Lord, is at page 782, and this is going back to the rules rather than the Practice Direction.  CPR 44.3B:  
 
		"(1) A party may not recover as an additional liability ‑‑ 
 
			....  
 
			(c) any additional liability for any period in the proceedings during which he failed to provide information about a funding arrangement in accordance with a rule, practice direction or court order; 
 
			...."  
 
So if such information was not provided, then it falls outside any normal discretionary rule as to costs and the court cannot order that my client should be liable to pay.  
 
MR JUSTICE SILBER:  So really the critical feature in this case ‑‑ 
 
MISS LIEVEN:  Is whether the requisite information under 19.1 was served by the giving of a notice.  
 
My Lord, there has been some correspondence in respect of this and as it were to pre‑empt what my learned friend's solicitors have said, reliance is placed on a telephone conversation between one of my learned friend's instructing solicitors and my instructing solicitor.   

MR JUSTICE SILBER:  You accept that it was given by a telephone conversation, but you say that a telephone conversation is not adequate?  
 
MISS LIEVEN:  My Lord, we accept a telephone conversation was had.  I have not an affidavit from Mr Chesman as to what was said, but for the purpose of these submissions it is not a matter your Lordship has to go into.  We say that it needs to be given in a written notice.   

MR JUSTICE SILBER:  Yes.  Right.  
 
MISS LIEVEN:  My Lord, shall I stop there and deal with the second point separately?  
 
MR JUSTICE SILBER:  What is the second point?  
 
MISS LIEVEN:  The second point, my Lord, I can put very briefly.  Where the claimant raised, as your Lordship will remember, five grounds, your Lordship found for the claimant on one of them (notification), but against on the other four ‑‑ 
 
MR JUSTICE SILBER:  I see.  This is a case where the person who loses says, "I won on all but one of the points and therefore I ought not to pay all the costs"?  
 
MISS LIEVEN:  My Lord, yes.  
 
MR JUSTICE SILBER:  I think that is a completely separate point.  
 
MISS LIEVEN:  It is a completely separate point, my Lord.  
 
MR JUSTICE SILBER:  Yes.  You are ready to argue this, are you, Miss Olley?  
 
MISS OLLEY:  Yes, my Lord.  
 
MR JUSTICE SILBER:  Good.  
 
MISS OLLEY:  My Lord, the applicable part of the Practice Direction ‑‑ 
 
MR JUSTICE SILBER:  Can I just go through it step by step with you?  Do you accept that you had to serve notice?  
 
MISS OLLEY:  My Lord, that is the point I was about to take your Lordship to.  19.2 of the Practice Direction provides at (1)(a):  
 
		"A claimant who has entered into a funding arrangement before starting the proceedings to which it relates must provide information to the court by filing the notice when he issues the claim form."  

MR JUSTICE SILBER:  Yes, but you accept that this was a funding arrangement?  
 
MISS OLLEY:  My Lord, 19.4 is the applicable part of the Practice Direction.  
 
MR JUSTICE SILBER:  Can I take it step by step with you?  Do you accept that there was a funding arrangement here within the meaning of this Practice Direction?  
 
MISS OLLEY:  Yes, we accept that, my Lord, but not one entered into before the proceedings were started.  
 
MR JUSTICE SILBER:  Where is that of importance?  
 
MISS OLLEY:  My Lord, in my submission, it is 19.4.  That provides:   

		".... a party who is required to supply information about a funding arrangement must state whether he has ‑‑" 

MR JUSTICE SILBER:  I do not know what you are looking at?  
 
MISS OLLEY:  19.4.  
 
MR JUSTICE SILBER:  Page 805?  
 
MISS OLLEY:  Yes, my Lord.  
 
MR JUSTICE SILBER:  Whereabouts?  
 
MISS OLLEY:  At 19.4, "Information which must be provided".  
 
MR JUSTICE SILBER:  I see, yes.  "Unless the court otherwise orders ...."  
 
MISS OLLEY:  ".... a party .... must state whether he has ‑‑ 
			....  
 
			taken out an insurance policy to which section 29 of the Act of the Access to Justice Act 1999 applies; 
 
		...."  
 
In my submission, the claimant did state that he had entered into such an arrangement.  
 
MR JUSTICE SILBER:  Can I make sure I understand your case?  Your case is that they did enter into a funding arrangement, but that they did not do it until after proceedings had started?  
 
MISS OLLEY:  Yes, my Lord, those are my submissions.  
 
MR JUSTICE SILBER:  So you accept a funding arrangement, but say it was after proceedings?  
 
MISS OLLEY:  Essentially, as has been referred to – my Lord, I have an attendance note of a telephone conversation.  
 
MR JUSTICE SILBER:  May we do it step by step, please?  You say that this is a once and for all obligation which only arises as on the date prior to the commencement of the application?  Once the application started, there is no further obligation.  In other words, the question is, you say: was there a funding agreement?  
 
MISS OLLEY:  No, sorry, my Lord, that is not what I seek to submit, my Lord.  I seek to refer you to 19.4 and the requirements in that part of the Practice Direction.  
 
MR JUSTICE SILBER:  For what purpose?  
 
MISS OLLEY:  It is against that that our actions must be judged.  We do accept that the name of the insurer was not supplied when the information that was entered into for the insurance premium was given.   
MR JUSTICE SILBER:  I am sorry, what I am having great difficulty with – and I am sure it is my fault – is quite what your point is.  Which part of Miss Lieven's argument do you disagree with?  
 
MISS OLLEY:  My Lord, essentially we accept that some of the information which should have been given was not given at first.  The name of the insurer ‑‑ 
 
MR JUSTICE SILBER:  Where does it say the name of the insurer?  
 
MISS OLLEY:  Can I take your Lordship to 19.4(3) on page 805?  
 
		"Where the funding arrangement is an insurance policy the party must state the name of the insurer, the date of the policy and must identify the claim or claims to which it relates ...."  
 
In a telephone conversation of 16 November the defendant was informed that an insurance policy had been taken out.  
 
MR JUSTICE SILBER:  But you accept you did not give the name of the insurer?  
 
MISS OLLEY:  Yes, and at that stage the policy had not actually incepted.  It was pointed out that the insurance policy had been taken out and it would be recoverable as well as the success fee relating to the conditional fee arrangement if the claimant was successful.  
 
MR JUSTICE SILBER:  So you accept that you did not give the name of the insurer, but you rely on the oral notice?  
 
MISS OLLEY:  Yes, my Lord, and in my submission the name of the insurer is not a matter which makes any great difference.  It is a fact of the insurance policy.  
 
MR JUSTICE SILBER:  This is part of the information which must be provided.  I do not follow your point because this is the information which ought to have been provided and has not been provided.  
 
MISS OLLEY:  The circumstances are, my Lord, that the papers relating to the premium were not sent to the insurers until 27 October.  The policy did not incept until 12 December.  
 
MR JUSTICE SILBER:  Can you give me some of the dates?  When was this application started?  
 
MISS OLLEY:  2 October 2000.  
 
MR JUSTICE SILBER:  On 2 October the application was commenced.  When was the insurance policy taken out?  
 
MISS OLLEY:  It incepted on 12 December.  
 
MR JUSTICE SILBER:  What, the insurance policy?  
 
MISS OLLEY:  Yes, and before that, my Lord, the arrangements were being made.  
 
MR JUSTICE SILBER:  But your difficulty is 19.2(4), is it not?  That, I should imagine, is what Miss Lieven is going to be relying on.  Is that right, Miss Lieven?  
 
MISS LIEVEN:  Inter alia, my Lord, yes.  
 
MISS OLLEY:  My point, my Lord, is that these funding arrangements, which is the insurance policy, was not entered into before the start of the proceedings.  
 
MR JUSTICE SILBER:  Yes.  But, you see, 19.1 says that somebody must give the information.  Nothing is said there about when it has to be given.  For that we look to 19.2.  19.2(1) deals with method of giving information when it is dealing with a claim.  19.2(3) deals with the case of somebody who has done it before filing the document.  Then we get on to 19.2(4):  
 
		"In all other circumstances a party must file and serve notice within 7 days of entering into the funding arrangement concerned."  

That would appear to be – did you say it was 12 December?  
 
MISS OLLEY:  That is when the policy incepted, but we have given notice a month before we actually entered into it.  We said on 16 November that was what we were going to do.  
 
MR JUSTICE SILBER:  Yes, but it was defective in the fact that it did not give the name of the insurer.  
 
MISS OLLEY:  Well, there was a quote from the insurer on 24 November saying, "We are prepared to make an offer ‑‑" 
 
MR JUSTICE SILBER:  Yes, but did you serve notice – I am sorry to press you on this – but did you actually give notice of the name of the insurer within seven days of entering into that arrangement?  
 
MISS OLLEY:  Not within seven days of 12 December, no, my Lord, but ‑‑ 
 
MR JUSTICE SILBER:  But you say you had given it earlier, did you?  

MISS OLLEY:  Yes.  We said on 16 November that we were entering into ‑‑ 
 
MR JUSTICE SILBER:  But you did not give the name of the insurer?  
 
MISS OLLEY:  No, my Lord.  Clearly we were not in a position to do that at that stage.  
 
MR JUSTICE SILBER:  But how do you overcome the point that you have to give the name of the insurer and 19.2(4) says that it has to be done within seven days?  
 
MISS OLLEY:  My Lord, I would seek to rely on rule 3.10, the general power of the court to rectify matters where there has been an error of procedure.  I would seek to draw your Lordship's attention to the circumstances which I have already referred to in part.  
 
MR JUSTICE SILBER:  3.10?  
 
MISS OLLEY:  Yes, on page 57, my Lord.  
 
MR JUSTICE SILBER:  On what basis?  
 
MISS OLLEY:  On the basis, my Lord, that we have been open and co‑operative in this matter throughout.  We indicated on 16 November ‑‑ 
 
MR JUSTICE SILBER:  You have not put any evidence in on this point, have you?  
 
MISS OLLEY:  No, my Lord.  
 
MR JUSTICE SILBER:  Do you want to put evidence in?  
 
MISS OLLEY:  My Lord, we would like an opportunity to do so, yes.  
 
MR JUSTICE SILBER:  So you are applying for it to be adjourned, are you?  
 
MISS OLLEY:  May I take instructions?  
 
MR JUSTICE SILBER:  You see, the difficulty I see is that it is very difficult to deal with powers unless you want to put some evidence in before me.  What I am prepared to do, subject to hearing Miss Lieven, is to adjourn this matter to be looked at on the assessment.  
 
MISS OLLEY:  In my submission, my Lord, it would be appropriate for it to be dealt with during detailed assessment in any event.  

MR JUSTICE SILBER:  What do you say about that, Miss Lieven, because it does not really make much difference if it is dealt with now or on the assessment?  
 
MISS LIEVEN:  My Lord, in my submission, it is not a matter for assessment.  It is a question of jurisdiction.  My learned friend cannot rely upon rule 3.10.  That is the reason I took your Lordship to section 29 and to the CPR.  If the notice is not served, there is no power in the court to award the sum.  My Lord, this is not some bizarre technical point.  
 
MR JUSTICE SILBER:  No, no.  I appreciate that.  
 
MISS LIEVEN:  The reason why the rules set it out like this is that prima facie my clients are being asked to pay twice.  We are paying the claimant's costs and we are paying insurance costs against the costs.  Now in those circumstances the CPR – and indeed section 29 is primary legislation – has said we would only be liable to pay those costs if a very rigorous procedure is followed.  My learned friend's solicitors have simply failed to follow the procedure.  They do not deny that.  It is accepted by my learned friend that the procedure has not been followed.  That is why she has to rely on rule 3.10.  
 
MR JUSTICE SILBER:  When was it known that this point was going to be taken?  
 
MISS LIEVEN:  My Lord, I raised it with Mr Maurici before we had even opened our mouths before the last hearing.  
 
MR JUSTICE SILBER:  Oh, I see.  So they have known about this for months?  
 
MISS LIEVEN:  They have known about it since we got their costs schedule, my Lord.  
 
MR JUSTICE SILBER:  Yes.  
 
MISS LIEVEN:  When I saw the costs schedule there were a number of point which were raised, one of which was this.  In my submission, your Lordship should not either adjourn it to yourself or adjourn it to the Costs Master because it does not go to the question of evidence on whether or not there were general circumstances.  It goes simply to whether a notice was served.  If it was not served ‑‑ 
 
MR JUSTICE SILBER:  But there must be a discretion in certain cases to extend.  
 
MISS LIEVEN:  My Lord, in my submission, that is what rule 44.3B is about: "A party may not recover as an additional liability".  
 
MR JUSTICE SILBER:  Yes, but all this is subject to the power of the court.  
 
MISS LIEVEN:  My Lord, that is an interesting jurisdictional issue and I would not particularly want to get into the detail of it.  
 
MR JUSTICE SILBER:  I think one has got to.  I do not think you can turn your back on that.  
 
MISS LIEVEN:  My Lord, in my submission, it is not up to the discretion of the court.  If the rules have not been complied with, then if you go back to section 29 which says that the costs are payable subject to Rules of Court.  Rules of Court 44.3B says that a party may not recover unless the information has been provided.  
 
MR JUSTICE SILBER:  But rule 3.9 sets out the circumstances in which – it is specifically stated there that there are provisions for relief from those sanctions for failure to comply with it.  So in other words, everything in 44.3B is subject to rule 3.9.  
 
MISS LIEVEN:  My Lord, I would not accept that this is a relief from sanction situation.  
 
MR JUSTICE SILBER:  That is what the person who drafted the rules thought because otherwise they would not have put that there.  
 
MISS LIEVEN:  I am sorry, my Lord.  The person who is having to sanction advice is my client.  They are being required to pay these additional costs.  
 
MR JUSTICE SILBER:  No, the sanction is failure to comply with the order.  The sanction is being imposed upon the claimant.  
 
MISS LIEVEN:  My Lord, in my very respectful submission, I would not entirely accept that analysis.  My Lord, in my submission, the simple point is that the rules have not been complied with.  There is no argument that the rules have been complied with and I am putting it wrongly to your Lordship.  A claim is being sought for something over £5,000.  In addition ‑‑ 
 
MR JUSTICE SILBER:  You see, what concerns me about it is that you knew from an early stage, did you not, that they were covered by insurance?  You knew that from when, that they were covered by insurance?  
 
MISS LIEVEN:  My Lord, there was a telephone conversation between Mr Chesman and Mr Harrison of my learned friend's instructing solicitors on 15 November 2000, at which point an insurance contract was referred to – the possibility of an insurance liability was referred to.  But, my Lord, at that stage on what we have heard this morning the insurance contract had not even been entered into.  So in terms of notice, as to precisely what my clients were facing in all the circumstances, in my submission, we did need that notice formally in writing – not some telephone conversation.  If my learned friend's solicitors failed to do that, then ultimately that rests with them.   
My Lord, I do submit that it is a matter for your Lordship rather than the Taxing Master because it is a question of jurisdiction.  
 
MR JUSTICE SILBER:  We are talking about £5,000 here?  
 
MISS LIEVEN:  We are talking about £5,000 out of a claim for something over £50,000.  Unless I can help your Lordship further, those are my submissions.  
 
MR JUSTICE SILBER:  Thank you.  And you rely, I presume, upon 19.2(4)?   
MISS LIEVEN:  Yes.  Your Lordship picked that up.  There is no issue, it does not make any difference at what stage the insurance premium was taken out.  Service still has to be made and, in my submission, it is absolutely apparent from 19.2 that it has to be in the form of a notice.  And then we see from 19.4 what has to be in the notice.  
 
MR JUSTICE SILBER:  Yes.  As I understand it, there has been no suggestion at all made in this case that they have been taken by surprise by this application or anything like that?  
 
MISS LIEVEN:  My Lord, I do not think that could possibly be taken.  As I say, Mr Maurici and I discussed the matter before we even started submissions, and it has been the subject of correspondence between my solicitors and Messrs Roe & Maw.  
 
MR JUSTICE SILBER:  Is there anything more you want to say, Miss Olley?  I think I probably cut you short.  
 
MISS OLLEY:  My Lord, yes.  My Lord, I am instructed that we did not actually know that this point was going to be taken today, although I accept that it was raised between counsel.  
 
MR JUSTICE SILBER:  You did not know it was going to be taken today?   
MISS OLLEY:  No.  My instructing solicitor was not aware until yesterday that this point was going to be taken.  
 
MR JUSTICE SILBER:  And if you had been told of that, what would you have done?  
 
MISS OLLEY:  I am instructed that my solicitor would have made application for relief.  
 
MR JUSTICE SILBER:  I am in the difficulty that we have a dispute here, have we not?  
 
MISS LIEVEN:  My Lord, that is simply unsustainable.  We wrote – Sharp Pritchard wrote to Rowe & Maw on 19 March with regard to the insurance policy and Rowe & Maw wrote back.  
 
MR JUSTICE SILBER:  Can I see this correspondence?  
 
MISS LIEVEN:  Certainly.  (Same handed)  Can I say, my Lord, to pre‑empt a submission, it was never accepted between myself and Mr Maurici that this point would be dealt with on detailed assessment.   
MR JUSTICE SILBER:  Mr Maurici is somewhere more pleasant today, is he?  
 
MISS LIEVEN:  Yes, I think so, my Lord.  
 
MISS OLLEY:  My Lord, it is true that we knew there was going to be an issue.  My Lord, the points that I seek to make are – of course there is no need to inform the amount of the liability which the defendant might be subject to.  That is clear from 19.1.  It is simply that the defendant was informed that an insurance policy was going to be taken out.  They were given lots of notice that there would be a liability if the claimant was successful.  They were aware that this figure would be recoverable if the claimant won the action.  There has been some suggestion in the correspondence that this was an exceptionally high premium.  
 
MR JUSTICE SILBER:  I have no idea about.  That is something I am not going to go into.  
 
MISS OLLEY:  Very well, my Lord, but the point I make is that this has to be done in a fair way.  We are not seeking to steal a march or be anything but open about this.  Extensive research was carried out and the insured chosen had the lowest premium.  We did give notice before the details were finalised.  We have been open and co‑operative.  
 
MR JUSTICE SILBER:  Is there anything else you want to say?  
 
MISS OLLEY:  My Lord, I can make the point to your Lordship that until yesterday we were not aware that this was a point which would be taken other than at the detailed assessment stage.  
 
MR JUSTICE SILBER:  Let us just have a look at the correspondence.  You see, what I am concerned about is that I asked you at the beginning whether you were ready to deal with this and you said that you were.  
 
MISS OLLEY:  That was as I understood matters, my Lord.  
 
MR JUSTICE SILBER:  Miss Lieven, did you make it clear to Mr Maurici that this was going be taken today?  
 
MISS LIEVEN:  My Lord, to the best of my recollection – I am trying to be as open with your Lordship as possible – we discussed the matter of costs – both sides' costs.  
 
MR JUSTICE SILBER:  I am just concerned about ‑‑ 
 
MISS LIEVEN:  My Lord, I am trying to be as fair as possible because Mr Maurici is not here.  During the course of the hearing we decided that because of the sums involved and the number of points that we wanted to take, it would be better to deal with those matters at detailed assessment.  But, my Lord, I am absolutely confident that I never represented to Mr Maurici that the matter of the insurance premium, which I have always seen as a separate question ‑‑ 
 
MR JUSTICE SILBER:  Well, you put it in a negative way.  
 
MISS LIEVEN:  My Lord, I would have said – I am very conscious that I do not want to mislead and I do not want to take advantage of the fact that Mr Maurici is not here – I am absolutely confident I never gave any reason for Mr Maurici to believe that the insurance premium point would be dealt with at detailed assessment.  Whether we discussed separately – why I feel so confident is that I discussed with my instructing solicitor the fact that we would raise it, if we lost, at this stage.  Whether we expressly said that to Mr Maurici, I do not know.  But, my Lord, there was no reason for those sitting behind my learned friend to believe that this matter would be dealt with be detailed assessment.  My Lord, in my submission, it is clearly a matter appropriate for your Lordship to deal with.  
 
MR JUSTICE SILBER:  Certainly it is, but it is just simply that they are now saying they are now taken by surprise.   

MISS LIEVEN:  My Lord, there was no representation to that effect whatsoever.  I can be absolutely confident on that.  
 
MR JUSTICE SILBER:  You see, the only reason I am concerned about that is that you and Mr Maurici agreed that there should be a detailed assessment which is, if I may say so, very sensible.  What I am concerned about is if it was made clear to him that you would be reserving from that the question of ‑‑ 
 
MISS LIEVEN:  My Lord, much as I would like to say to your Lordship: "I confidently remember that I said we would deal with it," I cannot be confident, and I do not want to take advantage of Mr Maurici's absence.  
 
MR JUSTICE SILBER:  That is a significant point.  I am very much tempted to accept your submissions, but I fear that the other side to some extent might have been taken by surprise and therefore it seems to me, subject to what Miss Lieven says about it, that the best course is to adjourn this application so that the claimant can put in evidence to ask for an extension of time. 

MISS LIEVEN:  My Lord, I do not want to waste more of your Lordship's time.  All I would say is that your Lordship has before you the correspondence where the point is raised and where my learned friend's instructing solicitors have given ‑‑ 
 
MR JUSTICE SILBER:  What I am concerned about is that they say – and I have no reason to disbelieve it – if they had known it was going to be dealt with today they would have put in some sort of evidence.  That is the point that Miss Olley made to me.  
 
MISS LIEVEN:  My Lord, it would, in my submission, have been perfectly open – and many, many judges in this Division would not have accepted an agreement to deal with this matter by detailed assessment.  The rules are quite clear.  
 
MR JUSTICE SILBER:  Yes, but some would.  
 
MISS LIEVEN:  But, my Lord, the point I make is that, in my submission, when parties come before this court on judgment day they have to be ready to deal with costs.  
 
MR JUSTICE SILBER:  Yes.  That is absolutely right, but when you say everything is going to detailed assessment, that might have prompted the claimant to think that this issue of the insurance premium would be dealt with on the assessment.  In other words, it would be adjourned. 
 
MISS LIEVEN:  I am sorry, perhaps I am not putting my point clearly enough.  My Lord, in my submission, the onus is on all parties at this stage to be ready to deal with costs.  
 
MR JUSTICE SILBER:  Not where you say there should be detailed assessment.  
 
MISS LIEVEN:  No, my Lord, that is my point.  Whatever is agreed between the parties – I have often been in a situation where the parties have agreed detailed assessment and the judge has said, "No, I am going to deal with it now".  
 
MR JUSTICE SILBER:  Certainly that is not an approach I would adopt, if the parties have agreed to adjourn for a complete assessment.  But, as I say, it seems to me, with substantial misgivings because I think your arguments are very powerful and very cogent, but on the basis that there might be an argument I am prepared to adjourn this matter.  It is a matter which could be looked at at the assessment, could it not?  
 
MISS LIEVEN:  My Lord, that is a matter for your Lordship.  I do not want to waste any more time.  
 
MR JUSTICE SILBER:  I adjourn this issue of the insurance premium with great reluctance.  For what it is worth (and it is obviously up to the Costs Judge), my view is that there must be a very heavy onus on the defendants to show that there ought to be a dispensation from the powers which have been set out.  But in the light of what has been said by both of  you, I do not think that it is clear that when it was agreed the costs would be assessed later, that this agreement would not cover the insurance premiums.  So I cannot reject the claimant's suggestion that if they had known, they would have applied with evidence for relief.
 
MISS LIEVEN:  My Lord, can I then much more briefly deal with two other matters: apportionment of costs and leave to appeal?  So far as apportionment of costs is concerned, your Lordship is aware that the claimant raised five grounds.  They only succeeded on one, notification.  They failed on consultation, contents of the report, contents of the meeting, and irrelevant considerations.  Your Lordship will be aware that a very considerable amount of time was taken up with the other issues.  My Lord, the CPR expressly say that that is a matter which may be relevant to the determination of costs.  I am sure that your Lordship is familiar with CPR 44.3(4)(b) which is at page 778.  The general rule remains the one that it has always been, costs following the event.  But 

		"In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including ‑‑ 
 
			....

			(b) whether a party has succeeded on part of his case, even if he has not been wholly successful...."  

My Lord, the approach for giving split orders has been strengthened quite clearly by the CPR.  
 
MR JUSTICE SILBER:  There is comment, is there not?  
 
MISS LIEVEN:  Yes, my Lord, there is comment.  44.4.6, which is over the page:  
 
		"The rule introduces new factors to which the court must have regard when considering what order to make about costs.  These factors include the conduct of all the parties which is further analysed [below]....  
 
		The Judge should consider whether or not the parties have conducted the litigation in accordance with a system of civil litigation which is designed to enable the parties to know where they stand at the earliest possible stage and at the lowest practicable cost, so that they can make informed decisions about their prospects and the sensible conduct of their cases."  
 
Now, my Lord, in my submission that is relevant because if this litigation focused on the sole successful issue, which was in my submission the sole arguable issue, which was notification, then the matter might have been conducted very differently.  
 
MR JUSTICE SILBER:  In what way?  
 
MISS LIEVEN:  My Lord, that issue of notification was one that ultimately could have been dealt with quite easily by the decision being made again.  The other issues such as content of the report, safety audit, conduct of the officer – your Lordship will remember the legitimate expectation argument, which was one which the council could not accept – so there were a whole range of other issues which were raised, which would have been much more difficult ‑‑ 
 
MR JUSTICE SILBER:  So what are you saying the order should be?  
 
MISS LIEVEN:  My Lord, I am saying that we would be happy to pay 50 per cent.  I of course accept that the fact you have won one out of five does not mean you simply say, "You get 20 per cent".  That would be ridiculous.  But, my Lord, I do suggest to your Lordship that a number of points were taken that should not have been taken, which were not successful, and which should be reflected in the costs of the litigation.  
 
MR JUSTICE SILBER:  Miss Olley, you accept there is obviously a discretion and that you should be in a worse position than if you had won on every issue?  
 
MISS OLLEY:  My Lord, in my submission, the claimant should have all of its costs.  There were five ground, but the time spent on each of them was not equal.  
 
MR JUSTICE SILBER:  It did take up some of the court's time, did it not?  
 
MISS OLLEY:  Indeed, my Lord, but, as I am instructed, the lion's share at the time of the hearing ‑‑ and indeed it is reflected in your Lordship's judgment – was on ground 1, the notification and consultation point, and that is the ground on which the claimant was successful.  And, crucially, the claimant won on the issue of link because the decision has been quashed.  I am instructed that there was little argument on the safety audit point, ground 5.  I am instructed that that was a subsidiary issue.  
 
MR JUSTICE SILBER:  Well, you won on 2 out of 6, did you not, on the way it actually worked out, because you won on notification and you won on the remedy, which took up a bit of time in argument.   
MISS OLLEY:  Yes, my Lord, but, as I say, the grounds on which we were successful took up most of the time in writing and oral submissions.   

MR JUSTICE SILBER:  So what do you say you should get?  
 
MISS OLLEY:  I say that the claimant should have all of its costs.  Costs follow the event.  The claimant won.  I further make the point that the claimant did make every effort to resolve the matter without recourse to litigation.  The suggestion was made that the council look at the decision again and it did not.  There was simply an internal review.  The failings were pointed out right at outset before the proceedings were issued by Miss Wainwright in her letter of 17 August 2000.  
 
MR JUSTICE SILBER:  Yes.  Is there anything more you want to say, Miss Lieven?  
 
MISS LIEVEN:  No, my Lord.         
 
MR JUSTICE SILBER:  The defendants must pay 75 per cent of the costs.   

MISS LIEVEN:  My Lord, finally, and very briefly, permission to appeal.  Your Lordship is aware that in a matter such as this what I have to show your Lordship under CPR 52.36 is that the appeal would have a real prospect of success.  My Lord, it is always very difficult to make this submissions, your Lordship having just dismissed my argument, but in my submission your Lordship's judgment is one which places a very heavy burden on local authorities carrying out any consultation exercise.  
 
As I understand it, your Lordship believes, rightly, that it does involve a high standard – indeed a very high standard – of consultation.  My Lord, perhaps equally importantly, the price for the local authority of failing to meet that standard is a quashing of the decision, which is an extremely high price to pay in local government law.  My Lord, it also raises important issues as to the correct approach when a claimant herself is consulted but says other people were not.  Your Lordship will remember that a good deal of time was spent on that theme.  My Lord, in my submission, that is a very important issue for anybody going through a consultation exercise and one which, in my submission – it is difficult to say that there are real prospects of your Lordship's decision being reversed because obviously if your Lordship thought that, you would have found against me.  
 
MR JUSTICE SILBER:  Oh, no, sometimes I do give permission.  
 
MISS LIEVEN:  My Lord, in my submission, this is a case that raises important issues and where there is, in my submission, a real prospect of the Court of Appeal feeling that local authorities have to be given somewhat more leeway and that the standards that your Lordship applied, and which were applied at first instance ex parte Cran, are standards which are too high.  In my submission, there is a real prospect that the Court of Appeal would say that the approach, for instance, in Wilson, where the claimant had been consulted but said it not matter, is not one that should be applied on the facts of the case.  My Lord, I cannot really say more because your Lordship knows the issues.  
 
MR JUSTICE SILBER:  Is there anything you want to say?  
 
MISS OLLEY:  My Lord, I oppose that application.  There is a very detailed judgment on all the issues of the case.  I appreciate that the defendant lost on the first ground on the basis of failures which are particular to this case.  
 
MR JUSTICE SILBER:  Thank you.  I unhesitatingly refuse permission in this case.  To my mind there was a duty to notify.  It is quite clear that it was carried out in a very unsatisfactory manner, both in respect of the first and the second mailings.  The notification both in the street and the newspaper advertisements did not remedy that.  These amount to what I regard as serious breaches.  
 
So far as the argument that the claimant was notified is concerned, I do not think that there is any real prospect of showing that the arguments that have been put before the court, suggested by Brown LJ and Latham J (as he then was), can be shown to be incorrect.  As these judgments established, the claimant has been deprived of assistance, support and alternative arguments.  To my mind this case falls a long way short of being one where the appeal would have a real prospect of success.  

Can I thank you very much for your arguments?