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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 >> British Medical Association, & Anor R (on the application of) v Secretary of State for Health [2008] EWHC 599 (Admin) (13 March 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/599.html Cite as: [2008] EWHC 599 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		13th March 2008

1. MR JUSTICE MITTING: This judgment contains acronyms and a word without ordinary meaning in English. I use them without apology because they were used by the parties to the events that I am about to describe.
2. The National Health Service Superannuation Scheme has 1.3 million members, of whom approximately 33,000 are general practitioners. The majority of scheme members, from hospital porters to consultants, are officers. For them, the scheme is a conventional contributory final salary pension scheme. That is not so for general practitioners.
3. Since the inception of the National Health Service, general practitioners' pensions have been based on a percentage of lifetime practice earnings. Until 1973, the percentage was 1.5 per cent. By the early 1970s, the value of general practitioners' pensions was being undermined by inflation. The British Dental Association, then in the same position as general practitioners, proposed that past earnings be "dynamised". Negotiations with the Department of Health followed, which produced a scheme which contained two elements: the uprating of past earnings to allow for inflation to 1971/2; and providing for future annual uprating of past earnings by reference to anticipated earnings in 1972/3 and following years. In return, the annual pension was reduced to 1.4 per cent of uprated lifetime earnings.
4. This aspect of the scheme was passed into law by regulation 3 of the National Health Service (Superannuation) (Amendment) (No 2) Regulations 1973, which provided:

"... a practitioner's total uprated remuneration shall be calculated by uprating his remuneration for all reckonable service as a practitioner in each financial year in such way as the Secretary of State, after consulting such professional organisations as appear to him to be appropriate, may determine and by adding together the uprated remuneration for each financial year..."

The percentage by which past earnings were uprated was known in the jargon as the "dynamising factor".

5. Until 2003/04, the dynamising factor was based on intended average net income ("IANI"). This was the average pre-tax, but after expenses, income earned from NHS practice which was more or less fixed by a process undertaken annually. General practitioners were paid on a cost-plus basis for NHS work. Each year a review body, the Independent Review Body on Doctors and Dentists Remuneration ("DDRB") recommended that IANI be increased by a percentage. The Secretary of State then decided what the percentage should be. His decision fixed the dynamising factor for past earnings for pension purposes. There was thus a close correlation between the amount by which general practitioners' National Health Service earnings rose and the increase in the value of their pensions. Marginal adjustments were made from time to time in an attempt to ensure that IANI matched actual earnings.
6. The 1973 regulations were successively replaced by the 1980 and 1995 regulations. Paragraph 11(2) of Schedule 2 to the 1995 regulations is that which is currently in force. What paragraph 11 does is to substitute for the provision relating to officers a provision relating to general practitioners only. The relevant parts provide:

"(1) In the case of members who are or have been practitioners, regulation E1 (normal retirement pension) is modified so that the yearly rate of a member's pension...

(b) in respect of practitioner service will be equal to 1.4 per cent of the member's uprated earnings.

(2) The member's uprated earnings are to be calculated by uprating the member's pensionable earnings in the manner determined by the Secretary of State after consulting such professional organisations as she considers appropriate."

7. By 2001, the Government had come to the view that the contractual arrangements with general practitioners should be fundamentally changed. The Department of Health entered into discussions with the British Medical Association to that end. The fruit was a detailed 108 page draft General Medical Services Contract sent to the BMA on 26th February 2003. It is known as "the Blue Book". Paragraphs 5.48 to 5.61 dealt with pensions. The relevant parts are:

5.48. GPs' pensions are calculated under a career earnings method rather than a final salary scheme. Each year of pensionable income is increased by an uprating or dynamising factor on a cumulative basis. The uprating factor is currently based on year on year changes in the Intended Average Net Income (IANI). An accrual rate is then applied on retirement age to the individual GP's total uprated career earnings to provide an annual pension entitlement. In addition, a tax-free lump sum of three times the annual pension is payable. Once a pension is being paid, it is uprated annually by retail price inflation.

5.50. As a result of the increased investment guaranteed under the new contract, average practice income will rise. It is not possible to state how much that rise is likely to be, given that the future ratio of profit to expenses is unknown and the concept of IANI will disappear. The pensions changes that will be made will mean that, over time, the total percentage increase in pensions should exceed the percentage increase in net income, because of the change in the definition of pensionable earnings.

5.56. It is essential that practitioners have certainty about the factor that will be applied at the point in time when they are contemplating retirement, and yet the abolition of IANI necessarily means that the actual year-on-year change in earnings cannot be known in advance. Equally, practitioners reasonably expect that increases in earnings that accrue under the new contract will be fully reflected in the uprating factor as soon as is feasible.

5.57. The uprating factor is currently based on the year on year percentage increase in IANI. IANI will disappear as a concept and a new method will be needed. We intend that the uprating factor, moving forward, should be based on the year on year percentage change in all pensionable earnings from NHS work (the aggregate of net NHS pensionable income, divided by the number of practitioners), adjusted by the TSC annually to allow for the shift towards less than full-time working. The TSC will also rebase the uprating factor on 1 April 2004 to ensure that the transfer of out-of-hours work does not depress the uprating factor."

8. General practitioners were invited by the BMA to vote on the new contract. They voted by a substantial majority in favour. In December 2003, the Department of Health published a contract, "Investing in General Practice", draft contract regulations and a draft standard GMS contract and a detailed explanatory document "Delivering Investment in General Practice", which is known as "the Green Book". In a forward to the Green Book, the Right Honourable John Hutton, the Minister of State for Health, wrote:

"Delivering Investment in General Practice – Implementing the new GMS contract is the product of negotiations between the GPC, the NHS Confederation and the Department and has been agreed by all parties. It fleshes out the detail of the contract document Investing in General Practice and sets out how implementation needs to be taken forward. It needs to be read in conjunction with the Contract Regulations published in draft on Friday 12th December, the Standard GMS Contract published in draft on 19th December, and the draft Statement of Financial Entitlements published today. These documents have been agreed by the NHS Confederation and the GPC and they provide the further information that PCTs and practices need to implement the new contract.

We have worked in partnership at national level. The Government is 100% committed to effective and timely implementation. The NHS, through the NHS Confederation, and the profession, through the GPC, have together developed the vision and the contractual mechanisms. It is now for PCTs and practices to work in partnership locally to make that vision a reality.

The local contracting process and its ongoing review mechanisms will fundamentally change the current relationship between PCTs and practices, enabling them to work together much more closely and more effectively. The contract is not just about a legal agreement. It must be about a relationship based on mutual trust, respect and support."

Two acronyms require explanation. GPC is the subcommittee of the BMA which deals with general practice matters and PCT is a Primary Care Trust.

9. Paragraphs 4.18 to 4.23 dealt with pensions. Paragraph 4.21 was headed "Uprating Factor" and reads:

"In the new contract, the uprating factor is based on the actual growth in GP pensionable earnings compared with the previous year. This will be adjusted by the Joint Health Departments/NHSC/GPC Technical Steering Committee to take account of the shift to less than full-time working. The exact figures cannot be known until after the end of the financial year, so the TSC will estimate an interim award to mitigate any short-term loss in benefits for newly retired doctors while the actual uprating factor for the year is assessed. The interim reward will be set at a level that avoids the need to make subsequent reductions or reclamation of pension or lump sum."

10. The Technical Steering Committee or TSC had on it representatives of the GPC and the Department of Health. In fact, the contractual documents said nothing about pensions or uprating, no doubt because the contract was to be between the general practitioners and Primary Care Trusts, which had no responsibility for the superannuation scheme.
11. The primary case of the claimants (the BMA and the representative general practitioner, who has retired) is that, by that statement and/or by steps subsequently taken to refine and implement it, the Secretary of State has determined the manner in which uprated earnings and so a general practitioner's pensionable earnings were to be calculated. The claimant's case is that, by a decision foreshadowed by a letter of 7th December 2006 from the then Minister of State, Lord Warner, the Secretary of State has unlawfully failed to apply that determination for the years 2003/2004 to 2006/2007 inclusive. I should add that there is no further document evidencing a decision by the Secretary of State to accept Lord Warner's recommendation. That letter is therefore treated as the decision that is the subject of this challenge.
12. It is common ground that (1) the Secretary of State would not have been entitled retrospectively to revoke her determination if made in relation to 2003/04 to 2005/06 in a manner which adversely affected the interest of general practitioners; (2) the Secretary of State was entitled to revoke her determination if made for the year 2007/08 and subsequent years and to replace it with a new determination.
13. The Secretary of State's case is that she has never made a final determination under paragraph 11(2) in respect of any year.
14. There is a subsidiary issue as to whether or not, if the Secretary of State has made a determination under paragraph 11(2) for 2003/04 to 2005/06, she has done so for 2006/07 or, having done so, is entitled to change her determination and redetermine the matter for that year.
15. If I decide those issues in favour of the Secretary of State, the claimants contend in the alternative that they have a substantive legitimate expectation, which also counts as a possession under the First Protocol, Article 1 of the European Convention on Human Rights, which it is not open to the Secretary of State to frustrate. Finally, the claimants claim a procedural legitimate expectation which the Secretary of State has not fulfilled. The Secretary of State disputes each of these propositions.
16. No document or documents internal to the Department of Health recording the making of a determination has been put in evidence. What, if any, determination was made has therefore to be ascertained from the published documents, correspondence and actions of officials and others. Despite the absence of an internal document, it is common ground that a determination of some kind was made. Ms Laing for the Secretary of State puts it as follows: the Secretary of State has decided what process should be followed by the TSC in making a recommendation to the Secretary of State but no more; it was for her to determine what dynamising factor would be applied in the light of that recommendation. I understand her to submit that this was not a conscious documented decision but an assumption based on past practice. There is no evidence of the circumstances in which, in the years before 2003 to 2004, the Secretary of State had declined to follow the recommendations of the DDRB as to the IANI for a particular year but I accept that the Secretary of State retained the power to reject its recommendations and may well have done so.
17. Paragraph 4.21 of the Green Book reads like the report of a determination already made. It set out in unqualified terms the basis upon which the uprating factor was to be calculated: "the actual growth in GP pensionable earnings compared with the previous year." It sets out what adjustment is to be made by the TSC to reflect "the shift towards less than full-time working". It sets out how an interim award on a conservative basis is to be determined by the TSC. The statement in the forward that the Government was "100% committed to effective and timely implementation" is wholly consistent with the manner of calculation having been determined: what was required was to implement it effectively.
18. Ms Laing submits that it is not enough that the Secretary of State had determined the basis on which pensionable earnings were to be uprated. A detailed methodology or formula was required and, as at December 2003, this was still under discussion. She is factually correct and in my judgment legally correct as well. In meetings in October 2003 between the GPC and Department of Health officials, options for implementing the agreed basis were discussed. At a plenary meeting on 22nd October 2003 it was agreed that pension dynamisation was to be discussed in a subgroup. It was, and agreement on a proposal to be put to a plenary meeting was reached on 5th February 2004:

"Dynamisation for 2003/4

3. Pensions for GPs retiring in '03/04 have been provisionally assessed at the '02/03 rate, pending conclusion on nGMS discussions. The sub group has been in agreement that the uprating factor should be based on the existing IANI principles and that the TSC should consider this with input from GAD [the Government Actuaries Department]...

Dynamisation for 2004/05 and subsequent years

5. From 2004/05 the sub group has agreed that the uprating factor should be based upon the year on year change in actual GP earnings. Each new DF will be the year's measured growth in actual GP earnings. This will be assessed on the basis of returns of Certificates of NHS Pensionable Profits received by PCTs and the NHS Pensions' Agency. TSC, with input from GAD, will make necessary assumptions about total numbers of GPs, and changes in, for example full time versus part time working, and transfers, for example, of OOH work. The final figures will, as before, be subject to consultation between DH and GPC.

6. Returns from practices will not be available until some time after the end of the financial year to which they refer, and significant numbers will not be available until after the Inland Revenue deadline for the submission of tax returns of 31 January following the end of the tax year. It will not be possible to make an assessment until a sufficient number of returns of NHS pensionable profits are available. The sub group has therefore agreed that the TSC should make a provisional assessment of the expected DF for GPs retiring in the current year at a safe level that will then be uprated when a final DF is available."

19. Ms Laing tells me, and I accept, that these proposals were put to and agreed at a plenary meeting in September 2004. Meanwhile, Dr John Chisholm of the GPC and John Hutton exchanged correspondence noting that agreement. Dr Chisholm wanted the agreement to be enshrined in regulations. Mr Hutton did not. Nevertheless, both reported the agreement on methodology reached at the subgroup meeting on 5th February 2004. Dr Chisholm, 25th February 2004:

"We have been encouraged by the very good and constructive progress made in recent months between the GPC and the Department on pension arrangements for GPs in 2003/04 and from 2004/05 onwards. We have no dispute with the methodology for the uprating factor that has been agreed and we are confident that the methodology will be implemented if it is left to the discretion of the Secretary of State."

Mr Hutton on 16th March 2004:

"Thank you for your letter of 25 February about the new pension dynamisation arrangements. I too am very pleased that agreement has been reached on the future arrangements for dynamisation. I am not however persuaded that changing the existing dynamisation regulations is necessary, or indeed beneficial for the profession.

The agreement between the GPC and the Confederation is that for 2003/2004, the Technical Steering Committee (on which the GPC, the NHS Confederation and the Department are represented), will recommend an interim level for the DF. Further analytical work will then be undertaken following which a final DF for the year will be recommended and arrears paid to doctors who have retired and whose benefits are affected. From 2004/2005 the TSC will again recommend an interim DF which will be revised when the actual changes in GP earnings become available some time after the end of the year in question.

The current regulations allow the Secretary of State to set the DF and there is no need in law to amend them to give effect to these agreed changes."

He proposed the exchange of a formal memorandum of understanding specifying "how the dynamisation agreement should work in practice".

20. The agreement as to method reached was circulated to National Health Service chief executives by Howard Robinson, a NHS Pension Agency Officer, a member of the TSC and the Scheme Communications Manager, as annexed to his circular of 17th December 2004:

"Medical pensions dynamising factor

Professional and NHS employer representatives have agreed a revised method of calculating the dynamising factor (DF) to be used for uprating the pensionable earnings used to calculate NHS Scheme benefits for all medical practitioners. For 2003-2004, the DF has been based on assessments of expected GP NHS earnings and expenses. For April 2004-2005 onwards however, the DF will be based on movements in actual GP NHS earnings since the previous year. For both 2003-2004 and 2004-2005 onwards, an interim estimated DF would first be declared, followed by a final confirmed figure for the year, once complete data for that year is available. Pensions awarded on the interim DF will then be reassessed and any arrears paid. In the unlikely event that pensions (including dependants benefits) calculated using the interim DF are found to have been overpaid because the final DF is lower than the interim DF, the overpayment will be recovered. The DF calculated under the new arrangements will take account of all GP pensionable NHS earnings and apply to all GP NHSPS benefits, including those of freelance locum GPs. An interim DF is now available for 2003-2004 (7.2%); see Newsletter 13/2004. The interim DF for 2004-5 is 6.1% and further details will be announced soon in a future newsletter."

21. Further circulars from the TSC, dated 17th May and 6th November 2005, set out the product of its detailed interim assessments for the years of 2003/04 to 2005/06 inclusive, setting out the formula for determining the interim dynamising factor and the outcome in tabular form. The language was that of decision: in the circular of 17th May 2005 "Annex 1 to this Newsletter now contains the interim medical DF for 2004-2005" and in the letter of 6th November 2005 the same for the following year. At no time and on no occasion before the meeting between Dr Meldrum (Dr Chisholm's successor at the GPC) and Lord Warner on 6th December 2005 did any official or minister of the Department suggest that the agreement finally reached at the plenary meeting in September 2004 or the detailed implementation of that agreement by the TSC were merely provisional and subject to a further determination to be made by the Secretary of State.
22. I agree with Ms Laing that the details of how the basis for determination stated in paragraph 4.21 of the Green Book was to be implemented had to be determined before it could be said that the Secretary of State had determined the manner in which the uprating of pensionable earnings was to be calculated under paragraph 11(2). The object of the exercise was to produce a mathematically certain figure. Without the details, that could not be achieved. All that would have existed would have been a determination in principle of no practical effect. However, by September 2004 or 17th December 2004 (the date of Mr Robinson's circular) or, at the very latest, 17th May 2005 (when the TSC assessed the interim dynamising factor for 2004/05) the details had been worked out and agreed by, amongst others, Department of Health officials. What they were doing was carrying into effect the decision in principle notified by the Department to the profession in paragraph 4.21 of the Green Book. They must have done so with ministerial approval. If, as the Secretary of State now contends, her approval was always conditional on reserving the final decision to herself, she should have said so in unmistakeable terms. There is no evidence that she contemplated that it might be desirable to do so until December 2005, by which date Lord Warner realised, apparently for the first time, that the dynamising factor produced by the agreed formula would produce a sudden and very large increase in general practitioners' pensions, far larger than had been anticipated in 2003.
23. A report dated 9th December 2005 from the Government Actuaries Department set out the financial impact in stark terms. If the dynamising factor was of the order anticipated by the Department of Health in 2003 (36 per cent in the years 2003/04 to 2005/06), there would be an unfunded liability of £1.4 billion for the National Health Service superannuation scheme. If the dynamising factor was as anticipated by applying the agreed formula, the unfunded liability would be between £2.1 billion and £2.8 billion.
24. There is difference of recollection as to what Lord Warner said at the meeting, but he did undoubtedly point out the financial difficulties to Dr Meldrum which would be caused to the scheme or to the taxpayer if it was not recast. On 24th April 2006, he wrote to Dr Meldrum, stating his intention to recommend to the Secretary of State that the TSC's "recommendations" (as he put it) for 2003/04 only be approved by her on the basis that it set no precedent for the following years. On 10th August 2006, he wrote in terms that implicitly acknowledged the existence of an existing, if unwelcome, method for determining the dynamising factor:

"As you are aware, the Department of Health has been concerned for some time about the windfall gains GPs who are members of the NHS pensions scheme stand to make from the operation of the current pension dynamisation rules [my emphasis] as a result of the new GMS contract...

I am minded to recommend to the Secretary of State that, in exercising her power to determine the dynamisation factor, she should if necessary limit the factors for this period so that the total increase does not place any additional pressures on the NHS pensions scheme beyond those allowed for in the proposals recently published by the NHS Employers organisation and the NHS Trades Unions.

25. In that latter passage, he articulated the proposition now advanced by Ms Laing that, until the Secretary of State made a decision on the amount of the dynamising factor for a particular year, she had not fully discharged her powers under paragraph 11(2); but he did so after "the current pension rules" had produced a different sum. The same duality of approach is to be found in his letter of 9th October 2006 to Dr Meldrum, in which he states:

"However, I believe the problems with the NGMS methodology go further, as neither the profession, other scheme members, nor the tax payer, are well served by a methodology that may deliver major increases in some years, and much smaller increases, and perhaps none at all, in other years, regardless of the overall movement in national average earnings or prices...

It will also allow for much quicker implementation of GPDF by the BSA for the 2004/08 years than is possible under current methodology [my emphasis], by avoiding the long time delay while GP contribution data is gathered."

Again, the references to "methodology" and "current methodology" impliedly acknowledge the existence of a manner of calculating pensionable earnings already determined, which he wished to change.

26. His final recommendation was set out in his letter to Dr Meldrum dated 7th December 2006, which gives rise to this claim. It states:

"I have indicated my readiness to discuss the detail of the Government's proposal, but, in the absence of comprehensive GPC comment on it, I am writing now to let you know that the Secretary of State has decided to exercise her powers to apply GMP Dynamisation totalling 48% over the years 2003/2008. This will be applied as set out in the table below."

The table sets out the dynamising factors amounting cumulatively to 48 per cent for the five years 2003/04 to 2007/08.

Even in this letter, however, Lord Warner acknowledged the existence of an already established arrangement:

"I believe that the Government's proposal is an extremely fair approach to an existing arrangement that has proved unsustainable in a mutual pension scheme."

27. This material, in my judgment, establishes that a decision in principle was made by the Secretary of State in December 2003 and worked out in detail and applied with the express approval of officials in 2004 and 2005. That must have occurred as a result of a determination by the Secretary of State of the manner in which pensionable earnings were to be calculated under paragraph 11(2). It was not made conditional on her final approval of the outcome. If it had been, that reservation would have been notified to the BMA and the National Health Service employers. It was only when the true cost of the manner determined by her became apparent at the end of 2005 that she attempted, by Lord Warner, to renegotiate the arrangements which she had already determined. She cannot do so with retrospective effect. The claim accordingly succeeds as regards the years 2003/04 to 2005/06 inclusive.
28. The Secretary of State's determination was made during the year 2006/07. No final dynamising factor could be fixed until several months after the end of the financial year. Provided that a decision to revoke her previous decision as to the manner in which pensionable earnings were to be uprated was made before the end of the financial year to which it related, there can be no question of retrospection. Lord Warner's letter gave explicit notice of revocation of the Secretary of State's determination for the year 2006/07. That revocation was lawful and effective for that year and for subsequent years. I should add by way of clarification that, although the letter sets out in percentage terms the dynamising factors for 2006/07 and 2007/08, those figures were set out as part of a total package and do not now bind the Secretary of State. She is free to determine the manner in which pensionable earnings are to be uprated under paragraph 11(2) for those years, notwithstanding the terms of that letter.
29. In light of my findings on the principal issue, it is not necessary for me to set out what my conclusions would have been on the remaining issues. Lest this case goes further, I will do so, but briefly. The facts which I have set out did give rise to a substantive legitimate expectation on the part of individual general practitioners, of whom the second claimant is representative, that their pensionable earnings would be uprated in the manner described in the three years identified. If, contrary to my finding, the Secretary of State did not so determine, she gave the clearest impression that she had. It does not matter that the class of persons to whom she gave the expectation is relatively large. General practitioners form part of an identifiable and limited class, of which membership can be ascertained with certainty.
30. That legitimate expectation was attached to a property right -- an entitlement to a pension -- so that acting in breach of it is capable of giving rise to a claim of infringement of a right to a possession under Article 1, First Protocol ECHR. Nevertheless, for the reasons summarised in paragraph 31 of Ms Laing's skeleton argument, the Secretary of State was in my judgment entitled to change her mind and disappoint the legitimate expectations of general practitioners. This is an issue to be decided at the "macro level", affecting, as it does, the interests of taxpayers and other contributors to the National Health Service superannuation scheme. The sums of money involved are large. It is a decision for ministers and not the judiciary. Accordingly, if I had not held that that decision had already been made, I would have held that the Secretary of State was entitled to revoke the apparent decision communicated to general practitioners, even with retrospective effect.
31. I would also hold that the procedural legitimate expectation which general practitioners have in relation to changes to the scheme were satisfied by discussions between Lord Warner and Dr Meldrum and by the exchange of correspondence between them. Accordingly, this claim succeeds only upon the principal ground and not upon any of the subsidiary grounds.
32. MR GORDON: My Lord, may I deal with relief? It seems to me that, in view of your Lordship's ruling, one will need to qualify probably the relief that we have sought. If your Lordship goes to bundle A, page 4, what we have sought is a declaration that the decision of 7th December 2006 is unlawful. It may be that we should draw up an order which more precisely reflects your Lordship's ruling that, save as to --
33. MR JUSTICE MITTING: The decision of 7th December 2006 as to the three relevant years is of no effect.
34. MR GORDON: Exactly, and, similarly, with the declaration, we would seek a declaration to similar effect.
35. MR JUSTICE MITTING: Well, I imagine that Ms Laing would, given my judgment, prefer that the decision is simply quashed.
36. MR GORDON: Possibly.
37. MR JUSTICE MITTING: Leaving it open to the Secretary of State to redetermine the method by which the years 06/07 onwards is to be assessed.
38. MR GORDON: I am sure we can agree on relief. I do not know if my learned friend wants to make any submissions on relief.
39. MS LAING: While we are on that subject, I had not anticipated that there was a problem in relation to the decision for 03/04. I had not realised that my learned friend was challenging that, because I had understood that the final dynamising had effectively been agreed and that was fine. The problem arose in relation to 04/05 and 05/06.
40. MR GORDON: Well, yes, I think that is right. I think for 2003/2004 we are happy with the DF that has been reached. I think that is right.
41. MR JUSTICE MITTING: Well, that I think is factually correct. Can I leave it to you to agree the form of order that will be made? I hope my judgment is sufficiently clear to permit you to do so.
42. MR GORDON: It is, my Lord.
43. MR JUSTICE MITTING: And would you lodge it with the court when it has been agreed?
44. MR GORDON: My Lord, certainly. The only other aspect is costs and we seek an order for costs against the defendant.
45. MS LAING: My Lord, I cannot resist that second application. We have lost and we should pay the costs. Can I raise a couple of matters in relation to the transcript, when it is corrected. Before I do that, it would assist both my learned friend and me if your Lordship were able to direct that the transcript be expedited.
46. MR JUSTICE MITTING: Certainly, although my experience of recent weeks is that transcripts arrive much more quickly if I do not direct them to be expedited than when I do.
47. MS LAING: Funnily enough, I had a similar experience in relation to a transcript of a judgment of your Lordship's. Let us hope that that works.
48. So far as the transcript is concerned, when your Lordship comes to correct it, there are a just couple of slips I wonder if I could just mention now. Right at the beginning, when your Lordship referred to the regulations, the first set of regulations was the 1961 regulations, which were then amended by the 1973 regulations.
49. MR JUSTICE MITTING: I know that, but there is no point in going back as far as 1961.
50. MS LAING: And so it was the 1961 regulations which were replaced by the 1980, rather than the 1990, regulations.
51. MR JUSTICE MITTING: That is strictly correct.
52. MS LAING: Then, finally, your Lordship has referred in one or two places to regulation 11(2) and it is paragraph 11(2) of schedule 2.
53. MR JUSTICE MITTING: Quite right.
54. MR GORDON: They are very small points. Then, again, I think it follows from the point I made about the year 2003 to 2004. There are one or two references, I think, in the judgment to the year 2003 to 2004 which, perhaps, in the light of the discussion we have just had, have no place there, because I think it is accepted that that decision is not challenged in these proceedings.
55. Moving away from the transcript, I would apply for permission to appeal. The central issue on which your Lordship has found against the Secretary of State concerns the true construction of paragraph 11(2) and we would submit that the construction that we were advancing before your Lordship is an arguable construction. It is clearly a very important issue for the Secretary of State and we would submit that it is an appropriate case for you to grant it.
56. MR JUSTICE MITTING: I grant you permission to appeal on both bases.
57. MS LAING: I am very grateful to your Lordship. My Lord, I do not think there is anything else. (pause)
58. MR JUSTICE MITTING: Thank you both for an efficiently conducted and interesting argument.