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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> T, R (on the application of) v Nottinghamshire Healthcare NHS Trust & Ors [2006] EWHC 800 (Admin) (08 March 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/800.html Cite as: [2006] EWHC 800 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		8th March 2006

1. MR JUSTICE SULLIVAN: This is an oral hearing of an application for permission to apply for judicial review and to continue interim relief. The claimant, who was born on 13 November 1971, has treatment resistant schizophrenia and has been detained at Rampton hospital for some eight years. He seeks permission to challenge the hospital manager's decision to transfer him from Rampton hospital to Broadmoor hospital under section 19 of the Mental Health Act 1983 and regulation 7 of the Mental Health (Hospital Guardianship and Consent to Treatment) Regulations 1983.
2. The application for permission to apply for judicial review was accompanied by an application for interim relief. Ouseley J. directed that there should be an oral hearing of the application for permission. He abridged time for service of the acknowledgement of service and granted interim relief preventing the claimant from being moved from Rampton in the meantime.
3. The claim was founded upon the explanation for the proposed move which was provided in a letter from Dr Larkin, the Associate Medical Director of Nottinghamshire Healthcare NHS Trust to the claimant's mother and dated 7 December 2005. That letter was a response to a letter from Mrs T dated 29 November 2005. Dr Larkin at that stage said this:

"I am afraid that the decision to move patients to Broadmoor Hospital is based upon their local address. The decision to work to catchment areas was made by the Department of Health as part of the overall planning for the high secure hospitals. It would not put patients in the hospitals at significant financial disadvantage because the funding to treat London patients goes to Broadmoor hospital and not Rampton hospital. These moves would affect patients not just at Rampton but also the other hospitals, Broadmoor and Ashworth. The principle is based on having patients closer to local services and facilities with greater involvement and potentially speedier transfers to less secure services. Broadmoor hospital provides the same range of facilities as Rampton hospital and while change is always stressful in the short term, in the medium to long term your son should benefit from the move. I understand your concerns but in the circumstances we have little option but to comply with the Department of Health policy in this matter."

4. That letter led to a challenge on seven grounds: that the impugned policy of the Department unlawfully fettered the discretion of hospital managers to treat patients in an appropriate matter; secondly, that if there was not a fetter on hospital managers' discretion then the Trust had misinterpreted the policy and regarded themselves as bound by it and thus wrongly fettered themselves; thirdly, that the Trust and the Hospital had failed to take proper account of clinical evidence; fourthly, that the policy was irrational in that it prevented high security patients from being treated in the most resource efficient manner, and indeed that there had not been any consideration of the efficient allocation of resources; fifthly, that the decision violated the claimant's rights under Article 8 of the Convention and was neither necessary nor proportionate to any recognised aim; sixthly, that there would be procedural unfairness because the claimant had not been allowed to make representations on the proposal before the decision was taken; and, seventhly, there was a failure to comply with the relevant code of Practice.
5. Because of what was perceived to be the urgency of the matter, the letter before claim was sent on 20 February 2006. The first and second defendants complied with Ouseley J's order and the first defendant served an acknowledgement of service. That was accompanied by supporting witness statements and exhibits from Dr Larkin, a consultant forensic psychiatrist and the Associate Medical Director of the Nottinghamshire Healthcare NHS Trust ("the Trust"), from Dr Payne, a consultant psychiatrist at Broadmoor, who would be the claimant's RMO if he was transferred there, and from Dr Hayden, a consultant psychiatrist at Rampton, who is presently the claimant's RMO and has been his RMO since August 2005 when his previous RMO, a Dr Davies, left the Trust.
6. The claimant now accepts that in the light of the further explanations given, ground one, which alleged that the Secretary of State's policy unlawfully fettered the discretion of hospital managers to treat patients in an appropriate manner, can no longer be pursued. Secondly, he accepts that ground two can no longer be pursued if the defendants are allowed to rely upon the further evidence that was submitted with their acknowledgment of service.
7. In response to that evidence, Mr Buttler on behalf of the claimant sought permission to apply for judicial review on an additional ground, that is to say that whether or not the first defendant was required to give reasons for its decision it chose to do so in Dr Larkin's letter to the claimant's mother dated 7 December 2005. He submits that, having provided those reasons, the first defendant should not now be permitted to provide additional reasons through the witness statements.
8. The argument is that the first defendant should not be allowed to retrospectively amend its reasons because that would pose a real risk that, albeit unconsciously, it would seek to remedy an apparent weakness in the decision making process by way of ex post facto rationalisation. For that proposition Mr Buttler relies upon a decision of Pill J. as he then was, in R. v. Secretary of State for the Home Department, ex p Nelson (Unreported) (11 May 1994). He submits that the first defendant's decision was unlawful because it failed to give adequate reasons and it should not now be allowed to supplement those reasons.
9. For the proposition that if a decision maker chooses to give reasons the reasons must be adequate and intelligible he relies upon the decision of Hutchinson J. in R. v. Criminal Injuries Compensation Board, ex p Cummins, The Times, 21 January 1992.
10. The first defendant accepted in its acknowledgment of service, which was the first occasion on which it was able to reply to the pre-action letter, that:

"…the way that Dr Larkin has expressed the decision in letters does not provide a full picture to the claimant's solicitors of the funding mechanisms. However, now that the funding position is explained, the court will see that there is no merit in this argument and it is, rightly put, a variation on the claimant's clinical needs against resources argument which is addressed above."

11. In my judgement, there is a clear distinction between a letter such as Dr Larkin's letter to the claimant's mother of 7 December 2005, which does not purport to be part of any formal decision making process, and the kind of decision letters that were in issue in the Nelson and the Cummins cases. In the former case the Secretary of State in a decision letter dismissed the applicant's appeal against a decision of his Chief Constable requiring him to resign from the Kent police force.
12. Thus the decision letter was part of a formal decision making process and had important legal consequences. It is readily understandable that if reasons are given in such a formal decision letter then they should be adequate and intelligible, and a court would be most reluctant to allow subsequent amplification and/or variation of them.
13. The same applies to the decision letter in the Cummins case. In that case, the decision letter was the Board's award of compensation and set out the basis on which it had reached its decision to award a particular sum. Again the decision letter was part of a formal decision making process.
14. The letter of 9 December 2005 does not fall into that category. It is in any event on its face an ex post facto explanation of a decision that had been taken at some earlier stage prior to the letter from Mrs T dated 29 November 2005. The precise date when the decision to move the claimant was taken does not emerge from the papers before the court, but, doing the best one can, it would seem that the decision was taken in the latter part of November 2005. Thus whilst Dr Larkin was seeking to explain that decision to Mrs T, the first defendant is certainly not bound by that explanation if on reconsideration it is recognised that the explanation was either inaccurate and/or incomplete.
15. As I say, the position is entirely unlike the kind of decision letters which are frequently in issue in proceedings in the Administrative Court, for example, decisions dismissing appeals against refusals of planning permission, decisions on housing applications as to whether a person is or is not unintentionally homeless, and so forth.
16. It is moreover plain that the letter of 7 December 2005 was incomplete, and indeed inaccurate in certain respects, and it is plain once one considers the contemporaneous documentation, even if the subsequent explanations in the witness statement of Dr Larkin are ignored. Thus, for example, on 23 February 2005 Dr Harris, the Executive Director of Forensic Services, and Dr Larkin, the Associate Medical Director of the Trust, wrote to all consultants about the repatriation of patients to Broadmoor and Ashworth Hospitals. The letter said, in part:

"As you will be aware, we have previously been asked by our Commissioners and the National Oversight Group to identify patients who are out of our catchment area and who could be repatriated back to their respective catchment hospitals at Broadmoor or Ashworth. All patients should have been removed to their respective hospital unless they satisfied one or more of the three criteria below:

(a) The patient is likely to be discharged within the next two years;

(b) The family/carers of the patient have relocated nearer to the current hospital;

(c) There is a clinical need for the patient to remain in the current hospital due to security/treatment regimes etc."

Following this, those patients that did not fulfil the criteria were given the choice to repatriate or not. At the last National Oversight Group it was proposed that all of the 'choice' patients would now be repatriated subject to legal and ministerial decisions.

In the light of this, and the likelihood that since the questions above were asked circumstances may have changed, we would therefore request that you review those patients that are from out of Rampton Hospital's catchment area and identify those that fulfil the criteria above. If (b) or (c) is the reason for the person not to be repatriated then we require the rationale or details of the clinical programme/security considerations. This will allow us to robustly argue cases with commissioners."

17. Mr Buttler accepted that at least in general terms the repatriation policy was not unlawful provided in every case proper consideration was given to the clinical needs of the individual patient and a proper balancing exercise was carried out. In the circumstance it is unnecessary to rehearse the justification for the policy in any detail.
18. In summary, in general terms the policy is not driven by financial considerations. Rather it is considered that there are likely to be positive advantages for the generality of patients arising out of the repatriation programme. That is to say they are likely to be in a hospital which would be more accessible to their family and friends, and, perhaps no less important, they will be in a hospital within the area where it is hoped that in due course they will eventually be returned into the community with appropriate support and assistance from the Social Services. As I say, those are very broad justifications for the policy, but the policy itself recognises that there may be a clinical need for a particular patient to remain in his or her current hospital.
19. Thus it seems to me that on the material available, firstly, that Dr Larkin's explanation of the policy was not accurate and did not do it justice. Once the full information is available, it is plain that the policy in general terms is not unlawful. Nor indeed does it fetter the clinical judgement of the Trust and/or the individual hospitals. It expressly enjoins them to consider whether there is a clinical need for a patient to remain.
20. That is confirmed by a letter from the West London Mental Health NHS Trust, which has overall responsibility for Broadmoor Hospital, the receiving hospital for the purposes of the present case. That letter says, in part:

"From the information available to me [the Director of Forensic Services] it would appear that there are currently seventy-seven patients at Rampton from the Broadmoor catchment area. Of these, seven are either mentally impaired/deaf and therefore could not transfer to Broadmoor. Of the remaining seventy, I understand seventeen are on a discharge pathway moving on to a lower level of security within the next two years. Thirty-six patients have a clinical/psychological/social reason not to transfer to Broadmoor, leaving seventeen patients who could be repatriated.

It would be West London Mental Health Trust's preferred option to work with you to identify patients who might be amenable to move to Broadmoor which would, in our opinion, more appropriately address your short-term bed pressures."

21. So again there is recognition that there will be patients at Rampton who cannot be repatriated to Broadmoor because there is a clinical/psychological/social reason not to do so.
22. On 17 August 2005 Dr Harris circulated his colleagues at the Nottinghamshire Healthcare Trust with information about the repatriation programme. The letter says this, in part:

"Can I be explicit in the task I am asking that you do. Could you please look again to all of your patients who come from either the Broadmoor or Ashworth catchment areas and re-examine whether or not there would be a clinical benefit to them of moving from Rampton to Broadmoor or Ashworth and ascertain whether those patients would be distressed by such moves.

As a secondary task it would be helpful also if you could ascertain which patients it would not be clinically inappropriate for them to move, i.e. there is no actual benefit, but also there is no particular loss in the transferring from Rampton to Broadmoor or Ashworth. Clearly if those in the first group come to more than fifteen then we may have to do nothing further than refer people for whom it is clinically appropriate to refer them. If on the other hand we do not reach a figure of fifteen or approximately fifteen, as the manager of the hospital I will then refer other out of catchment area patients to their catchment area hospital, but try to select those for whom it would not [be] clinically harmful if not specifically clinically advantageous."

23. These letters, in my judgement, better explain the policy, the rationale for it and the criteria adopted, than the explanation provided in Dr Larkin's letter of 7 December 2005. It will be noted that the letters that I have just cited were written before the relevant decision to move the claimant was taken. They were giving advice as to the basis upon which decisions for repatriation should be taken, and giving that advice prior to there being any question of litigation. It is plain beyond any argument that what the Trust was seeking to do was to identify those patients who would actually benefit positively from moving from Rampton to either Broadmoor or Ashworth, and, if there were insufficient numbers of those to free up Rampton's beds, for which there was a very considerable demand, then the selection would be made from those for whom it would not be clinically harmful, even if it could not be said that it would be clinically advantageous.
24. Against this background I will move to ground three of the challenge because that is the crux of the claimant's case that there was a failure to adequately consider the clinical evidence and to carry out a proper balancing exercise. In that context Mr Buttler relies in particular upon a nursing assessment carried out by nurses who came from Broadmoor to assess the claimant's suitability for transfer there. In summary, they agreed with the nursing staff at Rampton, who:

"feel that any move could prove detrimental to [the claimant's] health."

"Any move to Broadmoor would require careful planning and timing in order to prevent any further non compliance or possible deteriorations in mental state. For a move to take place whilst Michael is undergoing beneficial therapeutic interventions may cause him to lose the faith and trust he has built in mental health services."

25. There was also a report prepared by Dr Davies, who had been responsible for establishing the Cedars Unit, where the claimant presently is, and who had been the claimant's RMO until August last year. He prepared a lengthy report dated 14 February 2006. Clearly that postdates the decision making process, but what he said in the summary paragraph was this:

"In summary, Mr T has made significant progress over recent years in a service designed for patients with his needs. The service has been nationally recognised and has been highly commended in the NICE positive practice awards 2003, has been described in peer review research papers and book chapters. There is no equivalent service at Broadmoor. Any transfer, particularly as currently envisaged, would almost inevitably set back his progress, if not lead to a frank deterioration in his condition. The current transfer proposal is also far from representing good clinical practice within a high security hospital. It does not represent patient choice or facilitate any easier visits from his mother, who remains involved in his care.

By responding to short-term financial imperatives, the inability of an administrator to transfer a few hundred thousand pounds between budgets of tens of millions of pounds will have a profound effect on Mr T's social networks, dislocating him from staff and patients he has known for many years, will make contact with his family more difficult, is very likely to lead to a deterioration in his mental health, prolong Mr T's detention in conditions of high security, and consequently in the long run is likely to increase costs for the NHS."

26. At one stage in his submissions Mr Buttler submitted that it would be irrational to adopt a policy to repatriate a patient where it would be likely to have a grave impact on the patient's mental health. It is not in dispute that it would indeed be irrational to adopt such a policy, but it will be seen that neither the nursing assessment nor Dr Davies's report assert that there would be a grave impact on the claimant's mental health, and in any event the first defendant's policy would be to not repatriate a patient if there was likely to be a grave impact on his health. In such circumstances there would clearly be a clinical need to keep the patient at Rampton, which the policy would recognise. The policy is to move those patients for whom a move would either be advantageous or in clinical terms, broadly speaking, neutral.
27. It is unnecessary to rehearse the very considerable amount of detail in the witness statements of Drs Larkin, Payne and Hayden. It is plain from those statements that the views of Dr Davies, and indeed the nursing assessment, have been considered, but the defendants simply express respectful disagreement with those assessments. The disagreement is perhaps to an extent one of degree in that, as Dr Larkin points out, very often nursing staff, who are simply concerned with the wellbeing of a particular patient, would view with concern any possible disruption to their patient, but the hospital has to take account of a broader view. The question is whether there would be any significant risk to the claimant's mental health. Having set out all of the evidence, Dr Larkin says this in paragraph 44 of his witness statement:

"There is, of course, the possibility of another consultant psychiatrist reaching a different view. However I am speaking for both myself and Dr Hayden, who is the RMO, when we say that we do not share the view that it is inevitable or even likely that Mr T's mental health will be substantially or permanently adversely affected by this move. The move may be disruptive for him, but we feel reasonably confident that these risks can be managed. I would stress however that we are not required just to look to the medical and treatment needs of Mr T. We have other patients who are in desperate need of mental health services and are in prison. It is entirely predictable that their mental health will deteriorate as a result of staying in prison and not getting any suitable treatment. In these circumstances we feel that the risks of transferring a patient such as Mr T from Rampton to Broadmoor are justified."

28. There is a short witness statement from Dr Hayden, who is now the claimant's RMO, effectively endorsing Dr Larkin's witness statement. She adds by way of explanation that in her annual statutory review of 15 November 2005 she expressed the opinion that the claimant could not be recommended for a transfer to conditions of lesser security and that meaningful consideration of such a transfer could not take place until there had been further effective psychological intervention. She says:

"There is no doubt in my mind that effective psychological intervention can be secured and provided at Broadmoor and in the long term it is clinically appropriate to transfer the claimant to Broadmoor."

29. The authority on the receiving end of the repatriation, Broadmoor, is represented by a witness statement from Dr Payne, a consultant psychiatrist at that hospital. He expressly agrees with Dr Larkin's statement that Broadmoor Hospital provides the same range of facilities as Rampton:

"and in the longer term I would expect Mr T and the other patients who have transferred from Rampton Hospital to benefit from the move as we have developed closer links to medium secure units within the London area in order to facilitate the transfer of these patients to conditions of lesser security as soon as is possible."

30. He says that he has noted the views of Mr T and such reservations are not uncommon, but in his experience the problems can be overcome and patients are able to cope with the change. He says in terms:

"I believe that it is unlikely that his [the claimant's] mental health would deteriorate following his transfer to Broadmoor Hospital and, for the reasons already stated, I believe that transfer is likely to facilitate transfer to conditions of lesser security rather than prolong his detention in high security."

31. It has to be remembered that this is an application for judicial review. It is not an appeal on the merits. Much less is it some form of merits review of the clinical judgement of three psychiatrists. In order to establish an arguable case under ground three Mr Buttler would have to persuade me that the views expressed by Drs Larkin, Payne and Hayden were irrational: views that they could not reasonably have held. In my judgement, there is no prospect of him being able to surmount that risk threshold.
32. For the sake of completeness I should add that in an undated witness statement Mr Buttler's instructing solicitor, Mr Charlton, refers to a meeting that he says he had with Dr Hayden on 23 January 2006 where he discussed the claimant's position. He says that at that meeting Dr Hayden expressed concerns about the move, saying that it was regrettable but little could be done because it was being done for financial reasons.
33. In effect Mr Buttler accepted that he was challenging the honesty of Dr Hayden in the most recent witness statement and therefore in order to succeed he would have to cross-examine Dr Hayden. In my view it would not be appropriate to grant permission simply in order to enable that exercise to be done. Those assertions by Mr Charlton have not been put to Dr Hayden. I see no reason for this court not to accept that Drs Larkin, Payne and Hayden are telling the truth in their witness statements. It follows that ground three fails.
34. Ground four, it is accepted, rides on the back of ground three because the argument was along the lines that if a move was clinically inappropriate then additional costs would be incurred in looking after the patient for a longer time.
35. Ground five is effectively parasitic to a very great extent upon ground three. If there are no, or no significant clinical implications in respect of repatriation it is difficult to see how Article 8 could be engaged.
36. There is some debate about whether in the claimant's particular case he would be closer to his mother, who is involved with his care. She lives in London; Rampton is in Nottinghamshire; and Broadmoor is in Berkshire. At first sight it might appear that Broadmoor is not likely to be more difficult to reach, but Mr Charlton explains why due to particular factors, proximity to Kings Cross railway station, for example, and the need to journey across London, it is more difficult for Mrs T to get from her home to Broadmoor than it is for her to get to Rampton. But even on the information made available in that witness statement it cannot sensibly be said that the difficulties of travelling from London to Broadmoor are so great as to conceivably engage any Article of the European Convention on Human Rights.
37. The remaining grounds allege procedural unfairness and failure to comply with the code. It is understandable that those grounds might have been advanced on the state of the evidence as it was when the application was launched, but it is plain that the claimant has had an opportunity to express his views as to whether or not he wishes to be moved. He has made it perfectly plain that he does not wish to be moved.
38. There was a section 117 review in January of this year at which he chose not to be represented. I am quite satisfied that he has had an opportunity to make his position perfectly clear to the Trust and that the Trust have taken proper consideration of his view, although ultimately they were not persuaded to accept it. Equally, it seems to me, there is no force in the criticism that there was a failure to comply with the code in any way.
39. For all of these reasons I am satisfied that in the light of the material we now have that this claim is simply unarguable, and that permission to apply for judicial review should be refused.
40. In the circumstances, the interim relief granted by Ouseley J. will also fall away.
41. MR BUTTLER: My Lord, there was one point I made in my submissions that I have not gathered your Lordship addressed. I may stand corrected. That was in relation to the challenge on the clinical grounds that it would be irrational not to weigh up the detriment (no matter how significant or insignificant that detriment might be, there is evidence that there would be a detriment to the claimant) and to weigh up that against the potential benefit or detriment to the patient who is in prison moving to Broadmoor rather than moving to Rampton.
42. MR JUSTICE SULLIVAN: If you would like me to add, Mr Buttler, a rider to my judgment to say that I do not consider it irrational for the hospital to say in general terms that there are other patients who are in desperate need of mental health services who are in prison and who could potentially occupy the bed, or the space, that is occupied by the claimant, and it is not irrational to approach it on that basis rather than to seek to identify a particular prisoner and assess his particular needs and then consider whether those particular needs outweigh those of the claimant, I am content to do so.
43. I would accept that your submission might run if there was any evidence of significant mental harm to the claimant. But since the evidence is that patients are moved either where it is beneficial to them or where in broad terms it is not inappropriate, i.e. it is broadly neutral with no significant effect, I do not consider it irrational not to identify a particular prisoner who might benefit from a move. I am quite happy to add that rider. I am bound to say that I did not deal with it because it did not seem to me that it was the strongest point raised.
44. MR LOCK: My Lord, can I mention a couple of matters?
45. MR JUSTICE SULLIVAN: Yes.
46. MR LOCK: First of all, your Lordship referred to his transfer being under section 17. Can I put my hand up and accept responsibility for that, my Lord? It is a "typo" in my acknowledgement of service. It should in fact be section 19.
47. Secondly, my Lord, if a party wishes to have this judgment transcribed, would your Lordship concede to my learned friend's application, namely, that the name of the patient should be excised and replaced by a suitable letter?
48. MR JUSTICE SULLIVAN: Certainly. I should have thought that must be sensible. Maybe the claimant should be known as "T". But that would be the sensible course, I would have thought. It must be right. Nothing is to be done to identify the claimant.
49. MR LOCK: My Lord, finally there is the question of costs. Because the claimant is legally aided, my Lord, I ask for a costs order with the usual legal aid proviso.
50. MR JUSTICE SULLIVAN: Yes. It does seem to me that conceivably it could be said that on the basis of the letter of 7 December it is not surprising perhaps that proceedings were launched on the basis of that. The question is really whether anything should have proceeded after you put in your acknowledgement of service in evidence. But of course the date of all this is August. You filed that not very long ago, did you?
51. MR LOCK: Late on Monday afternoon. My Lord, all I would say in response to that is that Mr T has been represented by those who instruct my learned friend for a very long time, certainly a number of years, and this proposal to move, there has been no secret about it, and it was raised as late as last November. If an application had been made with a suitable opportunity to explain, clearly, an explanation would have been as forthcoming then as it was when it eventually came through the acknowledgement of service, my Lord, and in those circumstances the missing explanation as to what happened between November and the beginning of February. But my Lord, frankly, if your Lordship was to say that this is a no order for costs case, it would make no practical difference.
52. MR JUSTICE SULLIVAN: No. It makes no practical difference. But I will see what the Secretary of State says. What do you want to say, Mr Hyam?
53. MR HYAM: My Lord, I do make a formal application for costs on behalf of the Secretary of State. I accept the practical consequence of the order is that there is unlikely to be any application for such an order, but none the less on the point of principle first of all the Secretary of State probably need not have been joined as a defendant at all. But certainly after acknowledgement of service was served, the abandonment of the claim against the Secretary of State could have been withdrawn and that would have saved my attendance today. So I would seek an order in respect of the Secretary of State's costs. That would be definitely not enforced without leave.
54. MR JUSTICE SULLIVAN: Mr Buttler, what do you want to say about that? In fact, so far as the hospital's costs are concerned, or the first and second defendants', I am not minded to make any order as to costs one way or the other. As far as the Secretary of State's costs, is there any reason why, subject to the normal legal aid protection, there should not be an order for costs?
55. MR BUTTLER: In relation to my learned friend's submission that we were quite aware as to what was going on, there had been some talk of the transfer taking place and the reasons were given in December. But then on 17 February, at about a quarter past 4.00 in a Friday afternoon, my instructing solicitors were faxed a letter which stated that he was now to be moved the following day.
56. MR JUSTICE SULLIVAN: Sorry. I am just dealing with the Secretary of State's costs. Bearing in mind it is 25 past 1.00 is there anything you want to say why the Secretary of State should not have his costs?
57. MR BUTTLER: Yes. I cannot resist the application in relation to today's appearance, but in relation to costs preceding the Secretary of State's both acknowledgements of service, we did not know what was going on, and obviously we could only go on what was set out in the letter of 7 December, so he should not have his costs until that date if those could not be recovered from the first and second defendants.
58. MR JUSTICE SULLIVAN: I think the sensible thing to do so far as costs is concerned is to make no order in respect of the costs in the application for the first and second defendants, and, so far as the Secretary of State is concerned, that the claimant should pay the Secretary of State's costs. I do not split it up in terms of time but there should be the normal legal aid protection not to enforce without leave of the court.
59. MR BUTTLER: My Lord, I do seek leave to appeal and apply for interim relief while that appeal is pursued. The reason for that is, firstly, if the risk of transfer is imminent then there will be a very significant therapeutic effect on the claimant and his treatment will be set back by months, if not years.
60. MR JUSTICE SULLIVAN: That simply is not the case, from what Dr Davies said. Forgive me. He does not say there is a very significant effect, does he?
61. MR BUTTLER: He did not say it. That is my gloss on what he says. But he does say that the treatment risks being set back by months, if not years. In my submission, that would have a grave impact, so that is the first point.
62. The second point is that this application for permission was not considered on the papers. This is the first bite we have had of the cherry. We only found out what the first defendant's reasons were on Monday evening. I quite appreciate that there is this issue of blocking a bed for somebody who is in prison in the Rampton catchment area. For that reason, I propose that interim relief be granted for a week to allow us to put together our case to appeal.
63. MR JUSTICE SULLIVAN: Mr Lock?
64. MR LOCK: My Lord.
65. MR JUSTICE SULLIVAN: In reality, is there likely to be any move within a week?
66. MR LOCK: My Lord, I have just taken instructions. We can give an undertaking that Mr T will not actually be moved for the next seven days anyway. We give no undertaking after that, for the very reasons that have been canvassed. But in practical terms it would take a week to organise anyway.
67. MR JUSTICE SULLIVAN: Yes. Thank you very much. I am satisfied that permission to appeal should be refused. In my judgement, whatever might have been said about the merits of the case on the material when the claim was launched, in the light of the evidence put in accompanying the defendants' acknowledgement of service the case is quite hopeless now in legal terms, and I can see therefore there is no real prospect of success and no other good and sufficient reason to grant permission to appeal.
68. So far as interim relief is concerned, I would grant interim relief if it is clearly going to be really necessary, and, in the circumstances of the defendants' undertaking not to move the claimant for seven days, it is not necessary to give interim relief. It is open obviously to the claimant to apply to the Court of Appeal and to seek to persuade the Court of Appeal that interim relief be granted, if the Court of Appeal is minded to grant the application. Thank you very much.