Claim No. 2BS30445
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
2 Redcliff Street
Bristol
BS1 6GR

Date: Thursday, 19th April 2012

Before:

HIS HONOUR JUDGE McCAHILL QC
Sitting as a Judge of the High Court
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 Between:

PATRICIA JONES & MORAD TIGHILT
Claimants
-v-

FIRST GREAT WESTERN LIMITED
Defendant
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Transcribed from the Official Tape Recording by
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Suite 104, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES
Telephone: 0845 604 5642 – Fax: 01706 870838
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Counsel for the Claimants: 	MR FLETCHER

Counsel for the Defendant: 	MR PATON
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JUDGMENT APPROVED BY THE COURT

1.	THE JUDGE:  This application concerns the meaning, effect and possible variation of an interim order made by His Honour Judge Jarman QC in Cardiff on 9th March 2012. The case itself raises the issue whether the Defendant can charge taxi drivers an annual permit fee of £375 to use the taxi stands at, or ply for hire from, Bristol Temple Meads Railway Station 
2.	As a matter of construction of the order of 9th March as a whole and, in particular, schedule A thereto, alternatively in exercise of my general jurisdiction to accept revised undertakings in the interests of justice, I have concluded that the obligation to pay into court the sum of £375 is confined to those taxi drivers who will use and ply from Temple Meads Station. It follows, therefore, that there will be ‘List C’ taxi drivers. They will comprise those on List A, namely the members of the Claimant organisation, who are not going to be on List B. They will only be on List C because, although they are members of the Claimant organisation, they do not ply or intend to ply for hire from Bristol Temple Meads.
3.	My reasons for that conclusion, which I set out below, are those of an outsider who has had to consider and interpret the order and its schedule, as I did not make the order or accept the undertakings set out in the schedule. This was a contract, for want of a better word, agreed between the two parties. Each party made that deal in the belief that it was getting something of value.  
4.	It may well be that the Defendant thought that, under the order and the schedule, it would have the benefit of funds in court, represented by the number of all those members on List A, minus those already holding a permit, multiplied by £375. These funds, to be placed in court, were not some form of general security for costs. They were to meet the Defendant’s point that the Claimants’ talk could prove be cheap but their actions would cost money and so, pending trial, the taxi drivers should pay the equivalent of the permit fee into court, and no to the Defendant.  
5.	From the Claimants’ point of view, their question was why on earth would anybody, who was never going to ply from Bristol Temple Meads and who would, therefore, never buy a permit even if the Defendant’s arguments were correct, remotely consider paying money into court the sum equivalent to the cost of a permit for which they would never apply anyway.  
6.	The Defendant’s position was that what was being sold was the right to use the Bristol Temple Meads forecourt for plying for trade, whether or not the right was, in fact, exercised.  The Defendant’s case is that actual use is irrelevant, because it is right to use it which matters.  The Claimants’ reply was that such an approach lacked commercial realism because, in the end, this is all about taxi drivers who have to earn a living by plying for hire. They are only going to be interested in plying for hire and paying a permit in relation to Bristol Temple Meads, if that is where they pick up or drop off passengers.  
7.	So, mindful of the fact that these are opposite views, very strongly and very genuinely held by both sides, it is with some timidity that as an outsider, looking at the deal that was done, I ask myself what does this schedule mean?  
8.	To a certain extent, there is an advantage in coming in as an outsider.  I have read the material on the file, seen the rival contentions and read the lengthy letters. It is clear to me that, around the corner, there is likely to be an application to commit some people for not paying this money into court. Therefore, it is necessary to address the meaning of the order now, as the Claimants have done by bringing their application for the matter to be clarified by discharging the existing undertakings and accepting revised ones.
9.	Notwithstanding the general words in the order itself, and the content of the order and schedule, including the undertaking by the Defendant not to interfere with the free access of the Claimants to the taxi stands at Bristol Temple Meads Station, I am influenced by the following factors. 
10.	First, the terms of paragraph 2 of schedule A are: “To file and serve on the defendants by 16th March 2012 or earlier a separate list, the B List, providing names and plate numbers of those on the A List who have not as yet applied for permits from the defendants in respect of Temple Meads.” That undertaking contains within it at least the implication that those to whom it refers are taxi drivers who might want to use Bristol Temple Meads.  Equally, as Mr Paton submitted, it could be read as being binary, either you have got a permit and you are on List A or you have not got a permit and you have to go on list B. So, paragraph 2 may contain within it something for both sides.
11.	Secondly, when one looks at paragraphs 3, 4 and 5 of schedule A, in my judgment the balance tilts significantly in favour of the view espoused by the Claimants, namely that the deal is to be interpreted as applying only to those who are intending to ply from Bristol Temple Meads.  Paragraph 3 of schedule A provides:
“To pay into court by 4 pm on 16th March 2012 a sum representing £375 in respect of every member of the B List, such sums to remain in court until the trial of this action or further order.”  
That sum of £375 is the cost of a permit.  Some taxi drivers in List A have already paid the permit fee to the Defendant and have a permit.  For some taxi drivers, that is a step too far and, as a matter of principle, are they not prepared to pay for the permit until the court decides they must pay, so strongly do they feel about it. Nevertheless, they wish to earn their living, as they have done in the past by plying for hire at Bristol Temple Meads. Accordingly, paragraph 3 quoted above provided a means whereby the permit application fee can be secured.  If the claimants lose and they have to pay for a permit, that money is there.  It is not a general security for costs either of the action as a whole or for this particular interlocutory action.  All those, whose names appear on List A, are at risk of having to pay the costs of the trial if they lose.  That is the purpose of List A - to identify everybody who is liable to pay costs if the action is lost.
12.	Paragraph 4 of schedule A stated:
“To use their best endeavours,” [that is a reference to the Claimants to using their best endeavours,] “to ensure that every member of the B List will, pending trial of this action or further order, display in their taxi window an identifying badge consisting of the words ‘NTA’” [that is National Taxi Association,] “B List.”  
The implication here is that, if one were going to ply for hire at Temple Meads Station, in addition to the taxi licence plate (a local authority requirement), there must shown on the windscreen of a taxi either the new official permit obtained at a cost of £375 from the Defendant or an informal alternative, namely the List B logo.  If a taxi driver did not display an authorised permit from the Defendant or the List B logo on the taxi windscreen, access to Bristol Temple Meads would be denied to that  taxi driver.  
13.	It seems to me that paragraph 4 makes more sense if it relates  those who are actually going to use Temple Meads, than to some theoretical right to use which they never intend to exercise. 
14.	Similar in meaning is paragraph 5 of schedule A:
“To use their best endeavours to ensure that every member of the B List will adhere to the Defendant’s terms and conditions as applying to its permit holders at Bristol Temple Meads Station.”  
To me that speaks of actual use, not theoretical use. Standing back, therefore, and looking at the order and schedule A as a whole, it seems to me more likely that those on List B were to be those who intended to and did ply for hire from Bristol Temple Meads, not those members on List A who had and have no intention to do so.  
15.	Any taxi driver minded to cheat and seek to ply without a permit or without paying their money into court, would be denied access.  They will be stopped because they will have nothing on their windscreen which would allow them admittance. They will be detectable, because they will be a taxi licensed plated vehicle which has neither the appropriate permit, nor a list B logo.
16.	Accordingly, one comes back to point: where is the loss to the Defendant for the non-receipt of a payment for a permit that the taxi driver was never going to buy in the first place?  
17.	Therefore, I interpret the order in the way which I have indicated.  That should be sufficient in itself to deal with any immediate application for contempt proceedings.  I would be minded to amend the undertaking to add the words that Mr Fletcher has asked me to do, not because I think it is necessary, given my interpretation of the order, because they merely express the true meaning of the undertaking.
18.	However, if I am wrong in my argument of interpretation, for virtually all the same reasons, I would have exercised my general jurisdiction to accept revised undertakings in the interests of justice.  
19.	That means, I think, that, apart from the question of costs, we have to move on to case management directions.
MR	FLETCHER:  Yes, my lord, so that I am clear about what your lordship has ordered, is your lordship saying that the undertaking should be revised by insertion of the words or saying that it is not necessary?
THE	JUDGE:  I am giving you the option.  I am giving you the option on the basis that you know what interpretation I have given to the meaning in any event.
MR	FLETCHER:  Yes.
THE	JUDGE:  And in my view those words merely express that which I interpret it to mean but if it is going to be easier I would, if you wished it, allow those words to go in. And in so giving you that option, it is not one that puts you on the cusp of costs – in other words, it seems to me, if I have declared what the meaning is, that is the meaning.
MR	FLETCHER:  Yes.
THE	JUDGE:  And you have that in this judgment whether it is on that amended undertaking.
MR	FLETCHER:  Yes.
THE	JUDGE:  But if it is going to be easier for all concerned to put the matter beyond doubt, I would accede to the application to do that.  I leave it to you whether you want me to accede to that application or not, but I just simply make this point: that whether you ask me to do it or do not, my primary ruling is on the interpretation—
MR	FLETCHER:  I understand that.
THE	JUDGE:  And it cannot make much difference, if any, as to costs.
MR	FLETCHER:  My lord, I think the expression is out of an abundance of caution.
THE	JUDGE:  Yes.
MR	FLETCHER:  And there is Latin tagged to that effect.
THE	JUDGE:  Ex abundanti—
MR	FLETCHER:  And I think I would tend to err in favour of caution on a matter like this.
THE	JUDGE:  Yes, all right.
MR	FLETCHER:  In case anybody ever questions what this order means.
THE	JUDGE:  All right.
MR	FLETCHER:  And as we have had a big argument about it, it seems to me that it should be put beyond doubt.
THE	JUDGE:  I think that is probably the correct approach, because it may be necessary to show this to other people.
MR	FLETCHER:  Yes.
THE	JUDGE:  And if you have got a piece of paper which sets it out with those additional words, then so be it.
MR	FLETCHER:  Absolutely.  I think that would be the preferable course as your lordship has [inaudible] to either, so I simply invite you to permit me to amend the undertaking in schedule 2, schedule A in paragraph 2, by inserting the words that I put in my application notice, if I may?
THE	JUDGE:  Yes.
MR	FLETCHER:  And we can do the drafting of the order afterwards.
THE	JUDGE:  What about costs?
MR	FLETCHER:  Costs, my lord, we are here because the defendants have made an issue of this and whether it is a matter of clarification or a matter of amendment there is a technical matter.  We took the view having received many lengthy letters, and you have seen them in the file, and the defendants having written to both the Cardiff court and this court effectively threatening to raise the question of breach of undertakings which was a serious matter but one way or another it had to be brought back here as we could not reach agreement and there was, in my submission, no alternative to bringing it back.  In the event, your lordship has simply taken the view that that application – well, that the application we made was not strictly necessary but an application was necessary because the matter could not be allowed to drift on, it had to be brought to a head.  We have got aggressive correspondence saying in very strident terms that we are in breach of undertakings and we clearly had to do something about that.  Letters written to the court, I do not know what the court was supposed to do in response to those letters but we had every reason to assume the next thing that would happen would be some application to commit, so the matter had to be resolved.
THE	JUDGE:  Right.
MR	FLETCHER:  As it had to be resolved, it does not matter what the technical basis of our application was or is.  We have brought it back here so that the matter is resolved and your lordship has taken the view by two different routes that essentially we were right and the defendants were wrong for [inaudible]—
THE	JUDGE:  But the court has been called upon to resolve a disagreement about the meaning of a document, which should never have been ambiguous in the first place, and where your earlier applications had proceeded on a somewhat changing basis of what your instructions were or were not. My provisional view again, so that you know, is that this should be costs in the case.
MR	FLETCHER:  May I just make one further attempt to disturb that provisional view, my lord, just by putting it this way?  I accept and take entirely the point that the error, my lord, if there is an error, if the order is not clear enough then it might have been a little clearer but the point is that when we made the point that six words would correct the issue and the defendants took what you found to be an unreasonable approach to that, that resulted in—
THE	JUDGE:  I did not say that.  I did not stigmatise the Defendant as being unreasonable.
MR	FLETCHER:  All right, well I invite you to the view that it was an unreasonable view.  We took the view right from the start that there was no harm done by the amendment and no prejudice to them by the amendment.  In the event, that is what you found, objectively there is no prejudice to the defendants in having the order corrected this way – in other words, their position was, as I described it earlier, purely tactical.  There is no substantive prejudice to them in having an order that requires money to be put up by people [inaudible] and that is the point I have made and the point your lordship has accepted, so objectively there was no prejudice to them in agreeing this and, therefore, they should have agreed a simple amendment to the undertaking which would have saved the costs of our being here today.  That is my application.
THE	JUDGE:  Thank you.
MR	PATON:  My lord, three short points on costs.  I am bound to make I think a fourth in due course but the first point is that, as your lordship has said, there is an element as I think Judge Denning might say of [defective plumbing?] in the sense that we have a draft which both sides were quite clear meant something.  We have had – I do not wish to [inaudible] it too much but we have had shifting sands on the basis on which the application is made.
THE	JUDGE:  Yes.
MR	PATON:  And it is fair to say that until today we faced an application which was not quite [inaudible] application for relief from the severity of undertakings that appear to have been given and your lordship has now taken a view on interpretation which I argued against but that is the view that your lordship has taken and we are where we are now and now that we are clear about that it was not obvious to either party, in fact, that in fact the opposite was the case that that was the correct view of it, so in that situation either an order such as no order for costs or costs in the case would usually be appropriate. 
Secondly, I do, I register a very minor protest.  On the alternate basis for the decision, I did not address your lordship, I was not asked to address your lordship on the question of discretion and variation.  Had I been asked to do so, I would have gone through my revised skeleton and the cases and said that, in fact, the test for [inaudible] undertakings is somewhat stringent and goes beyond the interests of justice and requires some significant change in circumstances.  I would have made the point that had we been faced with that application alone, I would have made those points with some force so I take the decision of interpretation as [inaudible] but I would [inaudible] slight protest, not personally but not being fully heard on the question of whether but for that question on interpretation it would have been appropriate to vary it because the cases, in my submission, say that interest of justice is necessary but not sufficient and more recently the cases suggest that it must have some significant change in circumstances or similar factors but be that as it may we also have the situation that we had to have a hearing anyway because as it happens we had a dual hearing for directions and the application as well, so the matter had been transferred, we had to be here anyway to address the court and it has been a useful opportunity to deal with this point as well as if there is time the question of directions.  So for all those reasons costs in the case is the appropriate order.
THE	JUDGE:  Oh, I see, you agree with me?
MR	PATON:  Yes.
THE	JUDGE:  I agree, costs in the case.
MR	PATON:  Yes.
THE	JUDGE:  I am mindful to make an order for costs in the case, namely whoever wins at the end of the day will get these costs.  It is, I acknowledge, a case that was necessary because if we were not meeting here for this particular application, we would be meeting soon on a contempt application, so this had to be resolved.  I did not take the view that the Defendant was acting unreasonably in their interpretation of the agreement.  I have never said that.  It is an agreement which each side made, no doubt clearly thinking from their point of view what they were signing up for.  Unfortunately, there is a disagreement between the parties as to what it truly means.  Moreover, the position of the Claimants has not been entirely consistent since the agreement, as to whether it was accepting it had made a mistake or was not accepting it had made a mistake. So, it seems to me that somebody had to resolve this disagreement which is why we are here.
	It seems to me to have more association with the inherent risks of litigation about it than it does anything else, and I think that is, therefore, the appropriate order - that whoever wins will get the costs of this application. So my order is costs in the case and that will also, I think, cover the directions component too because, if we are going to move on, and we will move on and finish off the directions, inevitably the costs order for the directions component will be costs in the case.
MR	FLETCHER:  Of course, my lord.  My lord, as far as directions are concerned, you have before you a set of standard directions to take this to a fairly—
THE	JUDGE:  Does anybody want the first week in August for their trial?  It is a serious question.  Does anybody want this tried in the first week in August?
MR	FLETCHER:  I will just check my diary but, yes, in principle, my lord.
THE	JUDGE:  It is just I am taking you up on ‘ the first available date after July 20th’ I think it is.
MR	FLETCHER:  Yes, my lord, I accept in principle subject to my diary.
THE	JUDGE:  I will not bounce you into an irrevocable decision now but August is clear, because not everybody wants August, and if it were to be August it would be the first week, so that we can salvage some of August if we need to.
MR	FLETCHER:  My lord, may I suggest that it can and should be tried in August.  It cries out to be tried reasonably speedily whether by my route of a preliminary issue or just because it does not need to be that long-winded.  My lord, I have put in my skeleton my suggestion that it is possible to have a trial of a preliminary issue here because my submission is that there is an issue there that is spelt out in the pleadings that is going to determine this case one way or the other.  I cannot say 100 per cent that it will leave nothing else to be tried because it depends how it comes out but the issue is set out in paragraph 10 of my skeleton.  The difference between the parties really being this, and in a sense this is a short point that hangs upon an interpretation of authority and statutes and so on, we say that the claimants’ members of the association are entitled to access the stands because they have those rights pursuant to the by-laws.  Those by‑laws were made with the consent of the land owner and—
THE	JUDGE:  But do by-laws confer rights, private rights?
MR	FLETCHER:  No, these are public rights.
THE	JUDGE:  Yes.
MR	FLETCHER:  These are public rights but we say the effect of that is to designate these as [statutory?] stands that everybody including the public could access.  May I make it clear, my lord, we bring these proceedings as people who are especially affected, have special damage as a result of breach of public rights, in this case infringement or non‑compliance with by-laws.  The defendants’ position is that in order to access the taxi stands you have to have two things: first of all you have to have a piece of paper saying you are a licensed taxi driver and secondly you need their permission.
THE	JUDGE:  That is the case anyway, you would accept that.
MR	FLETCHER:  You need that anyway.
THE	JUDGE:  You need that anyway.
MR	FLETCHER:  You need it anyway but they are saying we need their permission.  What they are effectively saying is that they have the right to revoke that permission regardless of the by-laws and without any revocation of the by-laws and they—
THE	JUDGE:  Why will Bristol City not get involved and resolve this problem one way or the other, do you know?  I see there has been correspondence and they have declined to revoke.
MR	FLETCHER:  What they have done is – we do not know, my lord.  They have written letters taking the points that we now rely upon, those letters, the letters from the council trailer the arguments we are making in this case.  They are set out in several well constructed letters from the council legal offices.  At a certain point they decided for whatever reason not to go to law over this and that happened in January this year which is why my clients took legal advice.  They were expecting the council to fight this battle and it became apparent at a meeting that the council for whatever reason were not and it is not really – I mean we say it is an irrelevant matter and we do not know why and they have not explained it but—
THE	JUDGE:  Is the argument that there is a public vehicular right of way over the forecourt of Bristol Temple Meads still alive in this case?
MR	FLETCHER:  There is a highway argument but that is not central to the case, it is an alternative route because regardless of whether it is a public highway over which we could pass and re-pass, I mean the defendants will say, well, you might have a right to pass and re-pass, it does not entitle you to ply for hire, so the question is by what right do we have the entitlement to ply for hire and we say we have that right because the council has made the taxi stands public stands by law and they did that under an agreement made in 1974.  
	The defendants’ pleaded case is that what they did in 1974 was to grant a licence to each of the taxi drivers who were members of the then associations and we say that we dispute that as an interpretation of what happened.  At any event, my clients are not members of those associations; they had nothing to do with that agreement.  So I am simply setting out what I think is the central issue in the case.  I am not inviting you to take a view on it at this stage.
THE	JUDGE:  No, I have read the skeletons.
MR	FLETCHER:  It is obviously a matter that requires extensive legal argument.  I have set it out in paragraph 10.
THE	JUDGE:  It certainly will take more than two days.  Does your two days include pre‑reading, does it include time for a judgment, consequential matters or permission to appeal, costs?
MR	FLETCHER:  I am happy to be suggested to be wrong on the time estimate, my lord, but what I would say is this.  We do not necessarily need to try the compromise issue at the same time.
THE	JUDGE:  Do you know whether this is the core preliminary issue that the other side have focused on as well?  You may not have had time to think about this.
MR	FLETCHER:  We have had little discussion about this.
MR	PATON:  We received this this morning, my lord.
MR	FLETCHER:  Quite.  It is fair to say that I threw this at my learned friend this morning.
THE	JUDGE:  Yes.  I mean it is not in its final refined version here anyway.
MR	FLETCHER:  No, that is right but on the other hand we have both been involved deeply in the pleading of this case, it is fully pleaded now, I know what his case is, he knows what mine is.  It seems to me it is possible to say at this point that there is a key issue which could shorten matters and—
THE	JUDGE:  Is it a true preliminary point or is it just a prescription for ending up longer and more expensive, because that is the question we have always got to ask ourselves, is it not?  We try to find what we think is the clinical way through and it ends up backfiring and being more expensive and more lengthy.
MR	FLETCHER:  I have to say that I cannot say hand on heart that it is going to resolve everything in the case.
THE	JUDGE:  What I suggest is that you are going to have to have time, the two of you and your respective instructing solicitors, to ponder whether or not this is a preliminary issue case.  I mean plainly whether it is tried in August on a preliminary issue is a different scenario from it being tried with all arguments up in the air for a much longer time estimate. But I think that the better course is for us to -  unless there are directions in relation to pleadings, I mean for example I have seen the draft order for directions that has been prepared helpfully by Mr Paton’s instructing solicitors which I think has more London in mind in terms of its listing procedures than here - give you a fixed date.
MR	FLETCHER:  Yes.
THE	JUDGE:  And I could do that now, because I control my diary myself, but I think the first course is for you to go away from here today and reflect upon whether there is a preliminary issue that can be distilled out and which is a true preliminary issue.  
MR	FLETCHER:  Yes.
THE	JUDGE:  If you have agreed what it is, and have defined it, then we can have a short telephone hearing at any time you want.
MR	FLETCHER:  What I am minded to suggest, my lord, is we are very attracted by the idea of resolving this matter by trial in August so if it can be achieved – I mean pleadings are closed in this case, we have already had an exchange of evidence.  I do not see the need for these leisurely directions that the defendants have prepared.  It seems to me it can be done much faster than that.
THE	JUDGE:  I suppose they would say, if you do not answer when they write to you twice, that is what you are going to end up with because they say they have written to you twice and have had no reply.
MR	FLETCHER:  We have had extensive disclosure and exchange of witness statements already because of the interlocutories and, frankly, the factual issues are within a fairly narrow compass and we know what the legal issues are, pleadings are closed—
THE	JUDGE:  Do you agree that there has to be a breathing space now for you all to consider whether there is a preliminary issue that can be teased out of this, where directions could then be agreed between you?  You know at the moment that – I mean I am not prepared to paralyse the whole of the month of August.
MR	FLETCHER:  No.
THE	JUDGE:  On the off chance, because I think you are going to have to take collectively a realistic view on when can you get your case ready and you may say it is ready now. I do not know whether Mr Paton says it is ready now but shall we – you can come back next week by telephone if you want.
MR	FLETCHER:  I was about to say that, my lord, and perhaps if we were to have a backstop, a telephone hearing date now and meanwhile see how far we can agree matters, whether we can agree the preliminary issue or not.
THE	JUDGE:  Yes.  Mr Paton, does that commend itself for you or are you saying we are wasting our time thinking about August?
MR	PATON:  Could I just take instructions?
THE	JUDGE:  I will rise for five minutes.  That will give me the opportunity to go and look at the diary for next week and then I will come back with specific dates.
MR	PATON:  Yes.
[Short adjournment]

MR	FLETCHER:  [Gap in recording]… that and I mean we are not, I think, going to reach agreement here and now on anything.

THE	JUDGE:  No.

MR	FLETCHER:  I think we are both in favour of the idea of having a telephone case management hearing on this next week.

THE	JUDGE:  I think I should also respect what Mr Paton has said to me -  that if Mr Paton had arguments on the second ground of the application and they have not been ventilated, I must I think withdraw from my judgment a decision based on the second ground, if he has not had the opportunity to address me.  I am happy to base my judgment on the first ground of interpretation and, should it be necessary, I will reserve the right of the parties to apply to have that specifically argued on whether it is.

MR	FLETCHER:  Yes.

THE	JUDGE:  But having reached the view I have reached on interpretation—

MR	FLETCHER:  Yes.

THE	JUDGE:  It seems to me that it makes sense, even on that basis without going into the jurisdiction argument on the second limb, to amend the undertaking to put the matter beyond doubt.

MR	FLETCHER:  I think we understand where matters stand, my lord.  I will just say for the record that my own submissions to you would have been that he is wrong in his interpretation of the authorities.

THE	JUDGE:  That may be the case, but I am conscious of the fact and Mr Paton rightly drew my attention to the fact that I had made a decision on the basis it had not been argued and I had not heard him. So, whilst I am content for my decision to remain, I will not base it on the second point and, if it is necessary to do so, express the right to bring that back and have that point independently argued.

MR	FLETCHER:  I understand that, my lord.  It makes no difference, of course, to the order.

THE	JUDGE:  No, but so be it.

MR	FLETCHER:  Yes, I understand where we stand.

THE	JUDGE:  What I was going to suggest to you is, therefore, you can have your telephone hearing next week on Tuesday, Wednesday or Thursday, morning, noon or night depending upon your court availability and that of your instructing solicitors, whatever you want.

MR	FLETCHER:  Wednesday morning.

MR	PATON:  Yes, first thing Wednesday morning I am free.

THE	JUDGE:  Yes.  Shall we say then 10.30?

MR	FLETCHER:  Yes.

THE	JUDGE:  On Wednesday, 25th April, the Claimants to have responsibility for setting up the call.

MR	FLETCHER:  Yes.

THE	JUDGE:  With BT Connect or whichever agency you use. And if you contact the court, I will not say out loud what my telephone number is, but if you contact the court they will give you the right number for BT to ring on the Wednesday morning, so 10.30 Wednesday morning the 25th.

MR	FLETCHER:  Indeed, my lord, and in the meanwhile we will exchange views about it in case we can reach agreement.

THE	JUDGE:  Yes.

MR	FLETCHER:  But at the moment it does not look as if we will.

THE	JUDGE:  No, so be it.  I think what I am more interested in is August.  I would hope you would be able to let me know next week.

MR	FLETCHER:  That is a matter we can address on Wednesday.

THE	JUDGE:  Yes, whether August is in or out.

MR	FLETCHER:  We are very attracted, of course, by having an early trial and having it in August.  I think my learned friend—

THE	JUDGE:  But there may be – I mean people not knowing that it was going to be catapulted this quickly may have holiday arrangements and may take the view that their presence is indispensable, so I will leave all that to be looked at next Wednesday by telephone.

MR	FLETCHER:  Indeed.

THE	JUDGE:  It will be by telephone.  I mean I take it you would prefer it to be by telephone, do you, rather than coming into court?

MR	PATON:  Yes.

MR	FLETCHER:  Yes, my lord.

THE	JUDGE:  And then your solicitors can be on the line, of course, if they wish to do so.

MR	FLETCHER:  Yes, of course.

THE	JUDGE:  All right. In that case, I will adjourn the directions hearing then until 25th April at 10.30.  Anything else?

MR	FLETCHER:  No.  We will agree a minute, of course, of today.

THE	JUDGE:  And you have carriage of the order, Mr Fletcher.

MR	FLETCHER:  Yes.

THE	JUDGE:  Thank you very much indeed.

MR	FLETCHER:  Thank you, my lord.

[Hearing ends]