Neutral Citation Number: [2012] EWHC 1517 (QB)
Case No: QB/2011/0700
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from Master McCloud

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/05/2012
Before:

MR JUSTICE SPENCER 
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Between:

	A and B

and

The Chief Constable of Hampshire Constabulary 	Claimants (Appellants)

 Defendant (Respondent)	

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Richard Egleton (instructed by Walkers, Solicitors) for the Claimants

Jason Beer QC and Kate Cornell (instructed by the Force Solicitor, Hampshire Constabulary) for the Defendant

Hearing date: 10th May 2012 
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Judgment

Mr Justice Spencer: 

1. This is an appeal by the claimants against the order of Master McCloud dated 29th November 2011 striking out part of the particulars of claim. The claim in this case is brought against the Chief Constable by  A and  B.   The claim concerns the liability of the police to informants. It is for that reason that this judgment has been anonymised. I heard the appeal in private, having first given a public judgment explaining the reasons for doing so. It would have been impossible to debate the factual details of the case properly in public (and in particular names and places) without risking revealing the identity of the claimants. In this public judgment, therefore, some of the factual details are  couched in necessarily vague and bland terms.

2. The Master struck out various paragraphs of the amended particulars of claim, pursuant either to CPR 3.4 on the basis that the pleading disclosed no reasonable grounds for bringing the claim, or pursuant to CPR 24.2 on the basis that the pleaded claim was bound to fail, entitling the defendant to summary judgment. 

3. In short the basis of the appeal is that the Master was wrong in law in so far as she found there was no reasonable cause of action, and she was wrong to find that parts of the pleaded claim were bound to fail on the facts.

4. I have had the assistance of detailed submissions, in writing and orally, from Mr Egleton on behalf of the appellants and Mr Beer QC and Ms Cornell on behalf of the respondent. As the hearing progressed the issues became clear and comparatively narrow, although the factual background is complex. 

Factual background and the issues
5. Stripped to its barest essentials, the claimants’ case is (1) that the police wrongfully caused or permitted A’s identity to be disclosed to those representing a serious criminal of his acquaintance, and (2) that when A’s status as an informer had been wrongfully revealed the police did not look after and protect A and  B sufficiently. These were the two separate strands to the claim. For convenience only, these two strands have been described respectively as the “primary” duty and the “secondary” duty.

6. Crucial to a proper understanding of the claimants’ pleaded case is that it was alleged there were four unauthorised disclosures by or on behalf of the police that A was an informer, and that these four disclosures breached the “primary” duty of care the police owed him. It is in respect of the alleged breaches of this “primary” duty that the Master struck out the relevant paragraphs of the pleading. The Master declined to strike out the remainder of the claim, based on the “secondary” duty, and there is no cross-appeal against that decision. 

7. The information provided to the police by  A related to the criminal activities of  X who was charged with armed robbery. During the course of a preliminary court hearing prosecuting counsel disclosed, publicly, that the police had relied on information from an informer (see paragraph 10.2 of the amended particulars of claim).  

8. Difficult public interest immunity (PII) issues arose before the trial. The judge had to consider whether the prosecution were entitled to withhold the identity of the informer. In the event he ruled that they were. However, in the meantime, it alleged that there was, by implication, disclosure to  X’s lawyers that the informer was A. This was said to be by a combination of what was set out in documents submitted in the PII proceedings and what was said by prosecuting counsel in the course of the PII proceedings.  The bold allegation in paragraph 10.3 of the amended particulars of claim is that the defendant contrived to mislead the court by disclosing false and misleading information about the informer, in an attempt to retrieve the position following the earlier error, but in fact only made matters worse. That is the second disclosure relied upon. 

9. Pausing there, the Master upheld the defendant’s submission that what was said and done by counsel at court could not, as a matter of law, give rise to any liability because of the well recognised immunity extending to parties and their advocates (as well as witnesses) in relation to anything said or done in the course of proceedings at court. It has never been suggested by the defendant that the third and fourth disclosures were covered by the immunity. Mr Egleton mounted a late attack on the very existence of this immunity, developing a submission  he had made more faintly before the Master.

10. The third improper disclosure relied upon is set out at paragraph 10.8 of the  amended particulars of claim. It is alleged that in 2005/2006, or thereabouts, in the course of one of the many meetings between A and Detective Constable Y. Detective Constable Y told A that Detective Inspector Z had disclosed A’s identity to the solicitors representing X. In a witness statement which was before the Master, Detective Inspector Y denied (in effect) that there was any such disclosure. The Master struck out the claim based on this disclosure on the ground that the allegation was bound to fail for want of evidence. A accepted that he could not establish that what he says Detective Constable Y told him was in fact true. 

11. The fourth and final disclosure relied upon in support of the claim to breach of primary duty is set out in paragraph 10.10 of the amended particulars of claim. It is alleged, and for present purposes admitted, that in 2007 A’s relative had a meeting with Detective Inspector Z and Detective Constable Y in the course of which they disclosed  to the relative that  A was the informer. The Master struck out the claim based on this alleged breach on the grounds that it was bound to fail. This was because on the claimant’s pleaded case the relative had already become aware several years earlier that A was the informer, so any further disclosure in 2007, even if improper, could not have resulted in any loss or damage. The damage, if any, had already been done. 

12. The particulars of negligence which the Master struck out, based upon the four disclosures I have outlined, were set out at paragraphs 12 (1) to (5) of the amended particulars of claim. The “primary” duty of care, pleaded in paragraph 1, was “to protect A’s identity”. The Master also struck out those words. Two technical points arise here. First, Mr Egleton submits that such a duty did exist, and it was wrong to strike out those words. There is nothing in this point. Whatever the true scope of the alleged “primary” duty, if the Master was right to conclude that there was no prospect of establishing that any of four disclosures amounted to breaches, then she was correct to strike out the entire claim based on the “primary” duty.  Secondly, Mr Egleton complains that the defendant’s application notice contained no application to strike out the particulars in paragraph 12(4), relating to the fourth disclosure. There is nothing in this point either. The matter in issue was fully argued before the Master, and she was entitled to strike out any pleading of her own initiative anyway, as Mr Egleton concedes.

13. The Master embarked on hearing the defendant’s application to strike out the claim on 27th January 2011. That hearing was adjourned for many months to enable the claimants to investigate further the factual history surrounding the disclosure by prosecuting counsel, the suggestion being that it might have taken place not in the courtroom but elsewhere. That suggestion came to nothing. It was confirmed that the disclosure had been made  in court. It was not until 29th November 2011, however, that the hearing before the Master resumed after an adjournment of 10 months. 

14. The Master had before her skeleton arguments from both parties, and the amended particulars of claim. There has been a long and most unsatisfactory procedural history which it is unnecessary for present purposes to recite. Suffice it to say that the claimants had taken a very long time to formulate their pleaded case. The amended particulars of claim were supplemented by further and better particulars (dated 4th November 2010) and by further voluntary particulars (dated 8th February 2011). The Master was also provided with a bundle of authorities.

 “Core immunity” and the first and second disclosures
15. I have a transcript of the Master’s extempore judgment. She dealt with the four disclosures one by one, but first gave her conclusion on what she described as the “barrister in court issue”. At paragraph 2 she said:
“I am going to give this briefly since it seems to me on the present state of the authorities and the case of Donnelly…in particular, that to the extent that this claim relies on what was said and done by the barrister in court, then that is protected by an immunity and that no cause of action flows specifically from that…. I find that there is no reasonable prospect of success in pursuing that case. It would be bound to fail as a matter of law.”

16. Mr Egleton’s first three grounds of appeal relate to the Master’s conclusion on this point.  In his grounds he describes the immunity in question as “witness immunity”. Mr Beer submits that herein lie the seeds of the fallacy in the claimants’ argument before the Master, and in this appeal. No one suggests that prosecuting counsel was giving evidence as a witness in the  court proceedings, but on the authorities there is also immunity for the parties and their advocates in such circumstances. 

17. The case mentioned by the Master was Donnelly v Chief Constable of Lincolnshire (unreported), 26th July 2000.  That was an application to strike out a claim brought by a police informer. It is instructive to note the sentence of the pleading which was under attack (see paragraph 10):
“In particular, at the trial of Daniel Hart in  Lincoln in 1997 the claimant was referred to as ‘a pilot named Terry’, thereby identifying him, and in [1997] in the course of interrogating Denton and others Sergeant Walker showed to Denton video recordings of the claimant with Denton and told Denton that the claimants have been working for the police from the start, thereby identifying the claimant.” 

It was contended on behalf of the Chief Constable in that case that these disclosures were covered by the “immunity rule”, i.e. the rule that no action will lie against parties or witnesses for anything  said or done, although falsely and maliciously and without reasonable or probable cause, in the ordinary course of proceedings in a court of justice.  Support for this proposition was derived from a number of authorities including Silcott v Commissioner of Police for the Metropolis (1996) 8 Admin. L.R. 633.

18.  In Silcott Simon Brown LJ (as he then was) had stated the immunity even more broadly, suggesting that it extended to statements made or conduct which could fairly be said to be part of investigating a crime with a view to prosecution. However, in Donnelly, Gray J in the event drew a distinction between the different factual assertions contained in the sentence from the pleading quoted above. What had been said at the trial in court was clearly covered by the immunity, and that part of the pleading was struck out. But the voluntary disclosure of the claimant’s identity as an informer in the course of the police interview was different, and Gray J was not prepared to hold that it was covered by the immunity.   

19. Gray J’s reference in Donnelly to Silcott was to a passage expressly disapproved by the House of Lords five years later in  Darker v Chief Constable of the West Midlands Police [2001] 1 A.C. 435. In granting permission to appeal in the present case, Lloyd Jones J noted, relying on the grounds of appeal and skeleton argument in support, that Darker had not been cited to the Master. That is correct but I am satisfied that the reason it was not cited was that it did not bear upon the real point in issue before the Master. Silcott was mentioned in Mr Beer’s skeleton argument for that hearing, but on a different issue. Mr Beer had copies of Darker at court. Had he been concerned that the Master was being led into error by the reference to Silcott in Donnelly, Mr Beer would have been under an obligation to draw Darker to the Master’s attention, and would, I am sure, have done so. In fact, however, Darker merely reinforced and strengthened the central proposition upon which the application to strike out was based, for the reasons explained below. 

20. In Darker Lord Hope considered the scope of the immunity when a police officer comes to court to give evidence (which was the context of that case) at page 445H-446D:
“This immunity, which is regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceedings in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable or probable cause: Dawkins v Lord Rokeby (1873) LR 8QB 255, 264, per Kelly CB. The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence. No challenge is made in this case to what may conveniently be described as the core immunity”.    

21. Lord Hutton traced the history of the immunity, demonstrating that it has been established for centuries. However, the House of Lords overruled Silcott, holding  that public policy did not require the immunity to be extended to things done by the police during the investigative  process which could not fairly be said to be part of their participation in the judicial process as witnesses. In particular, the immunity did not extend to cover the fabrication of false evidence, which was the allegation in that case. 

22. It follows, therefore, and I am quite satisfied, that had the Master been referred to this and other passages to like effect in Darker, confirming the core immunity, support for the proposition which the Master accepted would only have been strengthened further. 

23. Returning to the first three grounds of appeal which attack the Master’s upholding of the core immunity, ground 1 alleged that the immunity did not apply in the circumstances of this case. Ground 2 alleged that “inasmuch as the Master sought to apply Silcott as the basis for her decision” such reliance was wrong in law having regard to Darker. Ground 3 alleged that even if the immunity applied, the Master failed to adopt the reasoning in Donnelly “which indicated the limits of witness immunity where duties are owed to informers”.

24. Mr Egleton seeks to draw a distinction between the application of the immunity to the first disclosure (counsel’s statement in court) and its application to the second disclosure (during the PII proceedings). However, in his concluding oral submissions in reply, Mr Egleton advanced a far more fundamental proposition of law, not mentioned in his grounds of appeal or skeleton argument, which I need to address briefly. Several days after the hearing (judgment having been reserved) Mr Egleton  provided me with further written submissions on the point, anxious that he had not cited all the authority he needed to. Mr Beer and Ms Cornell provided written submissions in response. I am grateful for all these additional submissions and have considered them carefully.

25. Before the Master, Mr Egleton relied upon the decision of the Supreme Court in Jones v Kaney [2011] 2 AC 398, in which judgment was given on 30th March 2011, during the period of the adjournment of the strike out application in the present case. Jones v Kaney concerned the immunity of expert witnesses from suit for breach of duty in relation to evidence they give in court, or views they express in anticipation of court proceedings. By a majority, the Supreme Court abolished that immunity. In doing so, the Supreme Court adopted the arguments which had led to the abolition of the advocate’s immunity from liability to his client in negligence, in and out of court: Arthur JS Hall and Co v Simons [2002] 1 AC 615. Mr Egleton submits that in the light of Jones v Kaney  it cannot be said with confidence that the core immunity relied upon in the present case still survives, at least in relation to the conduct of the barristers in this case, and that it would be wrong to strike out a claim where the relevant principles of law are still evolving. In his further written submissions Mr Egleton traces the development of the abolition of barrister immunity, citing passages not only from Arthur JS Hall v Simons, but also from Rondel v Worsley [1969] 1 AC 191 and from Saif Ali v Sydney Mitchell & Co [1980] AC198. 

26. I reject Mr Egleton’s argument. The Supreme Court in Jones v Kaney cannot be taken to have intended to abolish the core immunity under examination in the present case, which has been enjoyed by witnesses, parties and their advocates for centuries. As Mr Beer points out, Jones v Kaney is concerned with the liability of a “friendly” expert to the party who instructed him. Arthur JS Hall v Simons was concerned with the liability of an advocate to his own client. For example, in Saif Ali Lord Wilberforce said, at page 214E:
“In considering how far a barrister’s immunity extends, it is necessary to disentangle three strands. The first is that of privilege. This attaches to proceedings in court and protects equally the judge, counsel, witnesses, jurors and parties. It has nothing to do with a barrister’s duty to his client.”
In Arthur JS Hall v Simons, in considering the justification for a barrister’s immunity from suit by his client, Lord Steyn referred (at page 679) to the “analogy of the immunities enjoyed by those who participate in court proceedings”, thereby recognising the continued existence and importance of the “core immunity”.

27. It follows that, in relation to the first disclosure by the barrister at court, there is no possible doubt that the core immunity applies. Any breach of duty based upon that disclosure was bound to fail, and the Master was correct to strike out the relevant pleading. 

28. In relation to the second disclosure, during the course of the PII proceedings, the Master applied the same principle. It was, as she put it, “disclosure in the context of the PII application”. Mr Egleton submits that she was wrong to do so because the position was, on any view, far less clear cut factually. The disclosure arose from the service by the prosecution, on the defence and on the court, of documents containing factual assertions about the information provided by the informer. This was not disclosure at court, and was at best disclosure in collateral PII proceedings. Furthermore, submits Mr Egleton, the complaint is that the information disclosed was false and calculated to mislead the court, and the disclosure therefore fell outside any immunity which would otherwise have applied. In support of this argument Mr Egleton relies upon the decision of the House of Lords in Darker, and the decision of the Court of Appeal in Autofocus Limited v Accident Exchange Limited [2010] EWCA Civ 788. Neither case was cited to the Master in support of these arguments, but it is necessary to address them briefly. 

29. In Darker it was held that where the police had been guilty of manufacturing false evidence (for example by “planting” drugs or fabricating a record of interview) reliance could not be placed upon the core immunity simply because the officers in question went on to give evidence about those matters at trial. As Lord Hope put it (at page 449B):
“ This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts.”

 In other words, the wrong complained of and relied upon as founding the cause of action was the planting or fabrication, so the immunity did not apply. 

30. Similarly in Autofocus, the wrong complained of was the fraudulent conduct of the defendants’ agents in putting forward false and invented information as part of the fraudulent conduct of its business. The fact that the offending false documentation was exhibited to witness statements did not mean that the fraudulent activity of the witnesses was thereby covered by immunity from suit. 

31. In the present case, as Mr Beer points out, the claim is based not on the falsity (if any) of information passed by the police to prosecuting counsel, information which subsequently found its way into the PII disclosure documents. The claim is based on the disclosure itself in the PII proceedings. That puts it firmly within the core immunity, as the Master found. The disclosures were made in the course of PII proceedings which were an integral part of the court hearing. 

32. It follows that the complaint, in the third ground of appeal, that the Master failed to apply the reasoning in Donnelly, by equating the PII disclosure in this case with the wrongful disclosure in the course of a defendant’s police interview, is misconceived. In Donnelly, the disclosure complained of was made during the course of another man’s police interview, extraneous to the proceedings. In the present case the disclosure complained of was made as part of the court proceedings. The passing of information between the police and prosecuting counsel, even if it involved the communication of false information, could not possibly give rise to any cause of action by the claimants. That was not the disclosure relied upon. The Master did in fact apply precisely the distinction drawn by Gray J in Donnelly in the way she approached the third and fourth disclosures. 

33. In his skeleton argument, and in his oral submissions, Mr Egleton still sought to draw a distinction between things said in the course of giving evidence, on the one hand, and disclosure by prosecuting counsel at court in a preliminary hearing, on the other. This is to misunderstand the rationale of the core immunity rule. It is not the giving of the evidence or otherwise that attracts immunity. It is the circumstances surrounding court proceedings and the leeway which must be given to parties, advocates, witnesses, judges and jury to speak freely, as the authorities make clear. 

34. I therefore reject grounds 1, 2 and 3. The Master was quite right to conclude that there was immunity in respect of the disclosures allegedly made by or through prosecuting counsel at court and in the context of the PII hearing. The claim that those disclosures amounted to breaches of the “primary” duty disclosed no reasonable cause of action. 

34. I turn to ground 4. This is a challenge to the Master’s finding that the claim in relation to the third and fourth disclosures was bound to fail on the facts. 

The third disclosure
35. As to the third disclosure, Mr Egleton had to concede that the claimants were in serious evidential difficulties. The assertion in the amended particulars of claim was that Detective Constable Y had told  A that Detective Inspector Z had disclosed A’s identity. The defendant had sought further particulars of this assertion, asking whether it was the claimants’ case that Detective Inspector Z had in fact disclosed  A’s identity to the solicitors representing  X. The reply was as follows:
“[A] can only assert what he was told. Whether what [Detective Constable Y] said was correct or incorrect is not within the claimants’ direct knowledge and no positive allegation cane be made at this stage that [Detective Inspector Z] did disclose [A’s] identity to [X’s] defence solicitors.”

36. Mr Egleton contended in his skeleton argument for the appeal that as Detective Inspector Z had not made a statement in relation to this alleged disclosure, it was premature for the Master to reach any conclusion. The matter should go to trial so that the judge could decide the issue on the evidence then presented. In fact, contrary to this contention, there was evidence upon which the Master was entitled to act. A few days before the resumed hearing before the Master in November 2011, witness statements had been served from three police officers (including Detective Inspector Z) dealing generally with the claimants’ contention that there had been wrongful disclosure of A’s identity. At the end of his witness statement, Detective Inspector Z said “The disclosure by [prosecuting counsel] of the existence of the police informant to the defence is the only disclosure of that information that I am aware of”. That was a denial, express or implied, that Detective Inspector Y had  himself made any such disclosure. 

37. As against this, the claimants had no evidence to adduce. The Master proceeded on what turned out to be the wrong assumption that Detective Constable Y had died. It is regrettable that she was not disabused of this misunderstanding at the time of her judgment, but in the end it does not matter. The fact remained that there was no evidence adduced by the claimants, or capable of being adduced by the claimants, in support of the assertion. For completeness I should add that in the defendant’s solicitors’ lengthy response to the claimants’ letter before claim, dated 16th February 2009, it was made clear that Detective Constable Y had been informed of the allegation and denied it, describing the suggestion as “utter nonsense”. Whilst this material was not specifically drawn to the Master’s attention (although technically in evidence before her) it underlines the complete absence of any reasonable prospect of the claimants’ making good the assertion in their pleading. The test the Master had to apply was whether, taking the claimants’ case at its highest, the contention could possibly succeed. Plainly it could not. She was quite right to strike it out. 

The fourth disclosure
38. The other finding by the Master which is challenged in ground 4 relates to the fourth and final disclosure, to A’s relative. Here the fact of the disclosure was not in dispute. As a matter of common sense, however, the claimants could not sustain any claim for loss or damage resulting from this disclosure if the relative already knew of  A’s status as an informer, or believed he was  an informer, prior to the disclosure.

39. The claimants’ pleaded case was that about seven years previously X showed the relative a letter from his solicitors which, according to X, revealed that  A was an informer. The pleading asserts that the relative actually saw A’s name on the letter. The relative took no action about it at the time. Three years later the relative told B  about the letter, but B did not tell A. Then around three years later the police disclosed to the relative that the informer was in fact A.

40. The assertion in paragraph 12(4) of the amendment of the particulars of claim was that this final disclosure amounted to a breach of the “primary” duty of care, either because it confirmed the information the relative had been given previously by  X, or (if there was no such earlier disclosure) because it was the first disclosure to the relative  that  A was an informer. Mr Egleton submits that there is nothing wrong with a party pleading his case in the alternative. It was always possible, Mr Egleton contended, that the relative’s’s evidence about the letter would be rejected at trial, in which event it would be open to the court to accept that this  final disclosure was the first the relative  knew of  A’s status as an informer. 

41. I reject this submission. On the facts of this case it does not lie in A’s mouth to disavow his own pleaded case and invite the court to act on the basis that his primary case would be rejected and some other conclusion reached. As Mr Beer put it in his skeleton argument, Mr Egleton is effectively submitting that the claimants’ case taken at his highest would not succeed, but  if their case in that respect  is not proved, their claim might succeed. The Master was plainly right to reject such an argument. 

Costs of the hearing before the Master
42. There is a fifth ground of appeal concerning costs, in respect of which Lloyd Jones J refused permission. Mr Egleton renewed the application for permission before me. The Master ordered that the claimants pay the costs of the application which she summarily assessed at £6,501.50. Mr Egleton submits that this order was wrong in principle because the defendant had succeeded only in part. The application to strike out the remainder of the claim, based on the “secondary” duty, had been dismissed.   

43. There is no transcript of the Master’s judgment on the issue of costs, but Mr Beer’s note of the hearing is that the Master gave two reasons for the order she made, and Mr Egleton does not dispute this. First, she said, the defendant had substantially succeeded in his application, and had needed to come to court to secure that important relief. Secondly she had regard to the claimants’ conduct from January 2011. That was a reference to the adjournment of the proceedings to investigate the factual circumstances of the first disclosure (by the barrister at court), an investigation which came to nothing. 

44. Only rarely will a judge interfere, on appeal, with the Master’s exercise of discretion on costs. There is no basis to contend here that the Master’s order on costs was plainly wrong. On the contrary, it was the order which was to be expected. After a hearing which had extended over two court days with a long adjournment in between, the Master was best placed to weigh the factors bearing on the exercise of her discretion on costs, and to assess the significance of the claimants’ conduct. The fifth ground of appeal has no prospect of success, and permission is again refused.

Conclusion
45. It follows, for all the reasons I have given, that each of the grounds of appeal fails and the appeal must be dismissed.

Costs of the appeal
46. That leaves only the costs of the appeal. Costs will follow the event in the usual way. The claimants are assisted parties, but there is no reason why there should not be an order for costs against them, the amount of that order to be set off against any damages or costs they may recover within these proceedings. That was the order the Master made below. It is appropriate here as well. The claimants’ personal liability to pay such costs should be determined at an assessment pursuant to section 11 of the Access to Justice Act 1999, such assessment to be adjourned generally. There will be a detailed assessment of the claimants’ costs payable from the Community Legal Services Fund. 

47. I indicated when this judgment was sent out in draft that I would assess costs summarily on the basis of written submissions. I have received written submissions from the defendant dated 29th May and from the claimants dated 28th and 30th May 2012. The defendant’s revised schedule of costs claims £7,908.33 in total. The sum of £651 claimed for solicitor’s costs is agreed. For leading counsel and junior counsel together, the sum claimed for the hearing is £5,850. For further work, subsequent to the hearing, on submissions in reply to Mr Egleton’s further submissions on the survival of the “core immunity” in the light of recent authority, the total sum claimed is a further £2,058.33, representing  a total of nearly 15 hours work split between leading and junior counsel. 

48. The claimants contend that it was unnecessary for the defendant to instruct two counsel for the appeal, when Mr Beer conducted the hearings alone before the Master.  In fact he took Silk between those two hearings. It is contended that the fees are in any event excessive,  the time spent on the further submissions was excessive and in total counsel’s fees should not exceed £4,250. The defendant contends that it was reasonable to brief two counsel, and that the presence of junior counsel avoided the need for the attendance of a solicitor at the hearing, which would have been more expensive. The further detailed submissions expanded the legal argument considerably.

49. Approaching the matter in two stages, I am satisfied that the total sum claimed is proportionate. However, I do not think the claimants should have to bear the full cost of two counsel. Mr Beer had not required that assistance below, even after he had taken Silk. There was doubtless a saving of solicitor’s costs as a result, but if that were the only suggested justification, a noting junior would have been sufficient. On the other hand is clear that junior counsel did the lion’s share of the work on the further submissions, although I am rather surprised at the number of hours spent by both counsel in total.

50. Doing the best I can, I assess the proper sum overall for counsel’s brief fees at £4,500 and counsel’s fees for the further submissions at £1,450.  I do not propose to break that sum down any further as between counsel. Added to the agreed sum of £651 for solicitor’s charges, this produces an assessment of £6,601 in total. There will be an order for costs in that sum.