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Cite as: [2015] EWCA Civ 696

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Neutral Citation Number: [2015] EWCA Civ 696
Case No. C1/2014/2479


Royal Courts of Justice
London WC2A 2LL
11 June 2015

B e f o r e :





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Mr Ian Wright (instructed by Legal Adviser's Office) appeared on behalf of the Appellant
Mr James Maxwell-Scott (instructed by DAC Beachcroft Claims Limited) appeared on behalf of the Respondent



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  1. LORD JUSTICE LAWS: This is an appeal with permission granted by Aikens LJ on 30 September 2014 by Her Majesty's Inspector of Health and Safety against the decision of Collins J given in the Administrative Court on 4 July 2014.
  2. Collins J allowed the appeal of Rotary Yorkshire Limited ("RYL") against the decision of an Employment Tribunal sent to the parties on 2 January 2014 to uphold a prohibition notice served by the Inspector on RYL on 13 December 2012. Collins J quashed the notice.
  3. The prohibition notice was served under section 22 of the Health and Safety at Work etc Act 1974 ("HSWA"). As has been stated in one of the textbooks, Health and Safety Enforcement, the HSWA:
  4. "... represented a watershed in the history of the regulation and enforcement of health and safety in the United Kingdom. HSE statistics apparently show that since the Act came into force there has been an 87 per cent reduction in the number of fatal injuries to employees at work and a 77 per cent reduction in reported non-fatal injuries. The details are available at"
  5. It is convenient at this stage to set out the material provisions in the HSWA. Section 22 appears in part 1 of the Act. Section 1(1) provides, in part:
  6. "The provisions of this Part shall have effect with a view to-
    (a) securing the health, safety and welfare of persons at work;
    (b) protecting persons other than person at work against risks to health or safety arising out of or in connection with the activities of persons at work."
  7. Then I may go to section 20:
  8. "(1) Subject to the provisions of section 19 and this section, an inspector may, for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him, exercise the powers set out in subsection (2) below.
    (2) The powers of an inspector referred to in the preceding subsection are the following, namely, ... (d) to make such examination and investigation as may in any circumstances be necessary for the purpose mentioned in subsection (1) above;
    (e) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything therein, shall be left undisturbed (whether generally or this particular respects) for as long as is reasonably necessary for the purpose of any examination or investigation under paragraph (d) above."
  9. Then section 22:
  10. "(22) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or as likely to be carried on by or under the control of the person in question, the activities involve, or, as the case may be, will involve, a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as a 'prohibition notice')
    (3) A prohibition notice shall -
    (a) state that the inspector is of the said opinion; (b) specify the matters which in his opinion give or, as the case may be, will give, rise to the said risk;
    (c) where in his opinion any of those matters involves or, as the case may be, will involve, a contravention of any of the relevant statutory provisions, state that he is of that opinion specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and.
    (d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.
    (4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect -
    (a) at the end of the period specified in the notice; or.
    (b) if the notice should declares, immediately."
  11. Section 24 creates a right of appeal against the prohibition notice and also against another measure called an improvement notice. Section 24(2) and (4) provide:
  12. "(2) A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.
    (4) One or more assessors may be appointed for the purposes of any proceedings brought before the employment tribunal under this section."
  13. There is a right of appeal from the decision of the Employment Tribunal not to the Employment Appeal Tribunal but to the High Court pursuant to section 11 in Schedule 1, paragraph 16 of the Tribunals and Inquiries Act 1992. Section 11(1) of that Act provides, in part:
  14. "Subject to subsection (2), if any party to proceedings before any tribunal specified in paragraph ... 16 ... of Schedule 1 is dissatisfied in point of law with a decision of the Tribunal he may, according as rules of court may provide, either appeal from the tribunal to the High Court or require the tribunal to state and sign a case for the opinion of the High Court."
  15. Paragraph 16 of schedule 1 specifies the employment tribunals Section 11(2) of the statute, disapplies section 11 in relation effectively to employment cases before the Employment Tribunals where appeal lies to the Employment Appeal Tribunal and is, of course, the general run of employment cases. Issues in this appeal essentially concern the legal nature of both appeal rights; that to the Tribunal and that to the High Court.
  16. The facts of the case were dealt with very fully by the Employment Tribunal, which heard evidence over four days. As I understand it, there was no real dispute about the facts, certainly not the primary facts. The events in question took place at the Leeds Arena, a large construction site in Leeds, in December 2012. Collins J, helpfully, if I may say so, summarised the facts as follows at paragraphs 15 to 17:
  17. "(15) In the High Voltage room there were four transformers. Two, identified as A and B, were being commissioned and the switches which served them were dead. The jointed cables that were exposed were at the rear of the structure containing three switches. Two in the middle and left were shown by the absence of a light at the front of the structure as dead, that on the right was shown to be live. The exposed conductors were at the rear of transformers A and B, both of which would be dead if the left-hand switch shown as dead was in truth dead. If it was not in fact dead, the danger of serious injury by contact with any exposed conductor is all too obvious.
    (16) On entering the room the inspectors (there were three in all) found all the settings and the two locks on the left-hand switch to be in positions consistent with the exposed conductors being dead. Each padlock had its own key which was kept in a safe, the key to which was kept in another safe protected by a coded lock. Only three persons employed by the appellant had access to the keys and there was an elaborate process required to energise the left-hand switch so as to avoid any accidental energisation. Accidental or any improper energisation was a risk which the tribunal regarded as negligible.
    (17) While it was the inspectors' belief that the conductors were dead, they could not be sure that they were and the appellant was unable to prove that they were. There should be have been a system in place overseen by a Senior Authorised Person whereby there was proof provided in the form of documentation that when the switch was in the off position the conductors were in fact dead. the tribunal accepted the evidence given by the appellant's Project Manager that the approach must be to assume live unless proved dead."
  18. The appellant inspector issued an immediate prohibition notice. It stated that she was:
  19. " ... of the opinion that the following activities, namely any access to the high voltage (HV) AB income room other than to make the electrical systems safe which are being carried on by you at Leeds Arena construction site, Clay Pit Lane, Leeds LS2, involve a risk of serious personal injury and that the matters which give rise to the said risks are persons are liable to injury from an electric shock and that the said matters involve contravention of the following statutory provision, the Health and Safety at Work etc Act 1974, sections 2 and 3, Electricity at Work Regulations 1989, regulation 4.3, because you have not prevented access to conducting parts of the electrical system that can be energised and made live. The electrical system is high voltage and I hereby direct that the said activities shall not be carried on by you or under your control immediately unless the said contraventions and matters have been remedied."
  20. On the following day, 14 December 2012, an authorised person, Mr Howard, engaged by RYL, established that the conductors were indeed dead and had been dead on 13 December 2012. That fact was, of course, before the Employment Tribunal.
  21. Before that Tribunal it was submitted for RYL that the decision to issue the prohibition notice was premature and the inspector should have awaited the outcome of the test which was in fact carried out the following day and, as I have said, demonstrated that the conductors were dead. In the meantime, safety could have been ensured by a direction under section 20(2)(e) that the north high voltage room be locked and left undisturbed until the test was done.
  22. In a somewhat convoluted passage the Employment Tribunal described the approach to be taken to the appeal before it at paragraph 41 of its decision:
  23. "Our task and that of the inspector is and was to decide on the state of knowledge available on the day whether to issue the PN. Available knowledge includes that which can be acquired pursuant to a reasonable investigation. It does not, however, include knowledge that would be obtained as a result of the remedial action required by the PN. Otherwise there would be no point in issuing a PN which is conceived to make an otherwise unsafe situation safe. The Appellant has, in our judgment, confused that knowledge with that arising from an investigation pursuant to the powers in section 20. Those powers are given to inspectors to determine whether or not to issue a notice. They are not there as an alternative sanction available to mitigate risk."
  24. On the facts of the case the Employment Tribunal said this:
  25. "(43) The inspector did not know whether the exposed conductors were live or dead. She did know that people had been working and were expected to work in the vicinity of the exposed conductors. All the visual indicators were that the power to those conductors was off. She believed that they were dead but, in the absence of any evidence of testing, she could not know that. If exceptionally, she was wrong in her belief that the conductors were dead, contact with them would involve mortal risk. Accordingly, the only proper way to deal with the problem was to withdraw everyone from the high voltage AB incoming room and issue the notice in the terms she did denying access to the room other than to make the electrical system safe.
    (44) ... the risk was the possibility, in the absence of evidence to the contrary, that the exposed conductors might be live, however remote. That risk was present, having regard to the flow of high voltage electricity in the two other parts of the switchgear and the connection of the switchgear to the two transformers A and B, as well as the removed covers that exposed the conductors to the possibility of contact with those working in the HV room."
  26. The Tribunal decided in the light of these matters to modify the prohibition notice:
  27. "... so as truly to reflect the reason for the inspector's belief that [RYL] had breached the cited provisions of the [HSWA] and the 1989 Regulations.
  28. See paragraph 45 of the decision. Accordingly, they removed in the statement of reasons for contravention in the PN the words, "Can be energised and be made live", and substituted the words, "Are exposed and cannot be proved dead".
  29. Collins J, on appeal to him, drew attention at paragraph 25 to the evidence of Mr Burley, the most senior of the three inspectors who attended the Leeds Arena on 13 December 2012, that if on that day RYL had been able to prove that the conductors were dead the PN would not have been issued. This took the judge towards his conclusions in the case at paragraphs 27 to 29:
  30. "(27) Since the view was that proof that the parts were dead would mean that no notice would be issued despite the lack of a system to prove that it was dead, it would have been possible to extend the investigation to await testing the following day. The existence of a prohibition notice on the register against a company can produce a disadvantage, thus it is reasonable only to issue such a notice if it is clearly needed. In this case lesser action was regarded as sufficient protection if the parts were indeed dead.
    (28) Mr Wright [counsel for the Inspector] suggested that action under section 20(2)(e) could not be effectively policed. Breach of a direction is a criminal offence, as is breach of a prohibition notice, and the ability or lack of ability to police is the same for both. In the case of a respectable business undertaking, advice may be all that is in a given case needed and the issue of a notice may properly be regarded as unnecessary.
    (29) In the circumstances, in my view the Tribunal was wrong to decide that the only means of dealing with the situation was the issue of the notice. This was not properly to take account of the expertise of the inspectors in the light of the reasons given in the notice for its issue and the evidence that if the parts were in fact dead no notice would have been issued. I have put it that way because it is apparent that if an authorised person had been available on 13 December, proof that they were dead would have been established and no notice would have been issued."
  31. Accordingly the judge allowed RYL's appeal and, as I have said, quashed the notice.
  32. The Inspector's first ground of appeal is that Collins J exceeded his jurisdiction. The appeal to him under section 11 of the Tribunals and Inquiries Act 1992 was limited to matters of law. As I have shown, the jurisdiction arises only, "If any party is dissatisfied in point of law", but Collins J, it is submitted, did no more nor less than substitute his own view of the merits of the prohibition notice for that of the Employment Tribunal.
  33. There is, we are told, so far no decision of this court on the scope of a section 11 appeal or, indeed, of an appeal against a prohibition notice under section 24(2) of the HSWA. The scope of a section 11 appeal is, in my judgment, the same as that of any other statutory appeal on a point of law only. There is no particular magic in the words, "dissatisfied in point of law", the appellant must show that the Employment Tribunal has perpetrated a material legal error, a misconstruction of a relevant statutory provision, a finding of fact not rationally supportable on the evidence or a procedural error leading to unfairness. All these are very familiar categories.
  34. On this first ground of appeal I do not consider that Collins J has found such a legal error. The essence of his conclusion is that the Employment Tribunal should have decided that the situation confronting the inspectors could and should have been dealt with by a means less Draconian than a prohibition notice. That is, by action under section 20(2)(e), until tests were conducted the following day. That is a view of the factual merits and it was not, with respect, for the Administrative Court to take such a view.
  35. I acknowledge, however, that there may be another way of looking at the judgment. It might be said that the judge was rejecting, albeit only implicitly, the view of the law expressed by the Employment Tribunal at paragraph 41, namely, to put it in my words rather than those of the Employment Tribunal, that the power given by section 20(2)(e) is to effect a temporary measure to preserve the state of premises while an investigation is carried out under section 20(2)(d). I repeat for convenience just the last two sentences at paragraph 41 of the Employment Tribunal's decision:
  36. "Those powers are given to inspectors to determine whether or not to issue a notice. They are not there as an alternative sanction available to mitigate risk."
  37. On this alternative view of the judgment the judge is to be taken as holding that that last observation was legally erroneous.
  38. This point is effectively raised in the inspector's third ground of appeal and also by issue number 3 in the respondent's notice. It is, to say the least, difficult to get out of the judgment of Collins J any clear conclusion that the Employment Tribunal made this or any other error of law but if his judgment can be so read I would, with respect, hold that it is erroneous. Section 20(2)(e) is clearly ancillary, Mr Maxwell-Scott for RYL accepted this, to a section 20(2)(d) examination or investigation which is underway or contemplated. That means, however, in my judgment, that the section 20 power does not bite where the inspector has already concluded within section 22(2) that there exists a risk of serious personal injury. That is the position here. The inspector was not bound to furnish RYL with an opportunity to repair the (inaudible) which led to her justifiable conclusion that the section 20(2) risk existed. Nothing in the HSE enforcement policy statement or the section 20(2)(e) pro forma, to which Mr Maxwell-Scott took us, persuades me to the contrary. Nor do the factual matters referred to at paragraph 54 of Mr Maxwell-Scott's skeleton to which he referred at the close of his submissions. Those are, in truth, merits point which would not promote a good appeal to the High Court on law under section 11 of the 1992 Act.
  39. That is, however, not the end of the case. The respondent's notice raises issues as to the nature of the Employment Tribunal's appellate jurisdiction under section 24 of the HSWA. RYL submit that section 24(2) confers a broad power on the Employment Tribunal to cancel or affirm the notice according to its own view of the facts, including facts after the event which showed that the decision to issue the prohibition notice was, "Wrong even if not wrong at the time". See R (Hope and Glory Public House) v City of Westminster MC [2011] EWCA Civil 31, paragraphs 34 and 46. That was a licensing case. As was Sagnata Investments Limited v Norwich Corporation [1971], 2 QB 614, to which Mr Maxwell-Scott also referred. The submission is that Mr Justice Collins should have allowed the appeal because later events, the test on 14 December 2012, showed that the prohibition notice had, in truth, always been unnecessary; that there had, in fact, been no risk on 13 December. This is at the heart of the respondent's case.
  40. I have no doubt that section 24(2) of the HSWA confers a right of appeal on the facts and, unlike section 11 of the 1992 Act, not just the law. See the observations of Sullivan J, as he then was, in Railtrack plc v Smallwood [2001] ICR 714 at paragraphs 44 to 49. The view he there expressed was provisional but seems to me to be correct. However, this does not encompass the whole of the question. What facts are the Employment Tribunal to consider? Those which go to the propriety of the prohibition notice at the time it was issued or also later events amounting to hindsight and of which the inspector at the time may have no knowledge or means of knowledge. In Chilcott v Thermal Transfer Limited [2009] EWHC Admin 2086 Charles J adopted Sullivan J's preliminary view as to the scope of a section 24(2) appeal, that it was on appeal on the merits, and proceeded as follows:
  41. "(10) Returning to the section, that is section 24 and the powers that it confers on the Employment tribunal, to my mind it emphasises that the focus of attention on the appeal is to the situation on the ground when the notice is actually served. I take that from the point that it can either cancel or affirm the notice, and it is only if it decides to affirm that it can then affirm it with modifications. That seems to me to focus the analysis to the time when the notice was actually served.
    (11) Turning to section 22 and the focus of the notice itself, that too, necessarily to my mind, focuses the decision-making process to the moment at which the notice is served. In broad terms, the section is concerned with the identification, prevention, and thus management of risk. The risk being a risk of serious personal injury by reference to an activity then being carried on, or likely to be carried on by the relevant person or under the control of that person. So, the focus is as to risk flowing from an activity then being carried on or likely to be carried on as at time X, namely, the time when the notice is served."
  42. On the particular decision of the Employment Tribunal in the case before him Charles J said this at paragraph 21:
  43. "... it seems to me that they were not focussing, as in my judgment they should, on the point at which the notice was served and determining whether they, if they had been in the position of the Inspector, would have served that notice. Rather, they were looking at the position with the benefit of hindsight, as that expression is commonly used, namely, he may well have been right, he may well have been wrong but with the benefit of hindsight we can reach a different decision. That was not the process which, in my judgment, they were charged with; their task was to decide what they would have done at that point in time."
  44. See also MWH UK Limited v Wise [2014] EWHC 427 per Popplewell J at paragraph 22.
  45. Mr Maxwell-Scott submitted this morning that this more restrictive view of the Tribunal's jurisdiction would mean that there may be all sorts of questions which the Tribunal would have to go into in deciding whether the prohibition notice was justified at the time. I think, with respect, that this submission was somewhat in terrorem. The Employment Tribunal are simply required to consider and decide whether on the facts which were or should have been known to the inspector a prohibition notice was justified.
  46. In my judgment, Charles J's approach in the Chilcott case was correct; the question for the inspector is whether there is a risk of serious personal injury. In reason such a question must surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision. He or she is concerned with the prevention of injury at that time, that is the focus of the provision, which, it should be remembered, contemplates action in a possible emergency. The Employment Tribunal on appeal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector's action.
  47. I do not consider that the provisions in other statutes dealing with different situations referred to by Mr Maxwell-Scott in his supplementary skeleton illuminate the issue. Nor does the passage in R v Birmingham City Council ex party Ferrero Ltd [1993] 1 All ER 530 at 538, 539, bear on the question whether hindsight evidence might be material on an appeal of the kind arising under section 24. The language of the statute in that case, section 15 of the Consumer Protection Act 1987, was very different. The general observation in Lloyd v McMahon [1987] 1 AC 625 at 697 and also 715 to 716 carry the matter no further. The language of section 264 of the Merchant Shipping Act 1995, another arrow in Mr Maxwell-Scott's quiver dealing with arbitration following a prohibition notice under that statute is an interesting provision but its terms are of a very different character from those of section 24. The licensing cases to which I have already referred in passing are concerned with factual scenarios which are continuing or may continue into the future and that is an important feature. The Vice-Chancellor's dictum in Harris v Evans [1998] 1 Weekly Law Reports 1285 at 1301H to 1302A is relied on. He said this:
  48. "The Act of 1974 [that is, of course, the HSWA] itself provides remedies against errors or excesses on the part of inspectors and enforcing authorities. I would decline to add the possibility of an action in negligence to the statutory remedies."
  49. Plainly Sir Richard Scott did not have in mind anything like the debate which has been conducted in this case before us. In those circumstances I do not consider that this passage promotes the kind of hindsight jurisdiction contended for by Mr Maxwell-Scott.
  50. To accede to Mr Maxwell-Scott's argument would, I think, risk distorting the section 22 function. The primary question for the Employment Tribunal is whether the issue of the notice was justified when it was done. An inspector may rightly apprehend a risk and be justified in acting on his or her apprehension even though later necessarily unknown events may demonstrate that, in fact, there was no danger. Section 24 is not, in my judgment, to be construed so that it may appear to call in question the propriety of a notice which it may well have been the inspector's duty to issue at the time.
  51. I would, for all these reasons, reject Mr Maxwell-Scott's argument concerning the scope of the section 24 appeal.
  52. There remains ground 2 of the inspector's grounds, that is that the judge should not have taken into account the actual or possible commercial disadvantage to a business of having a prohibition notice registered against it. The reference is to paragraph 27 of the judgment, which I have read. Plainly such a consideration is irrelevant to the merits or demerits of a prohibition notice's issue. It arises here, however, only upon the premise that section 22 and section 20(2)(e) are, so to speak, rival recourses for the inspector, a proposition, which, for reasons I have given, I would reject. I add this: the inspector's view of risk may not be qualified, certainly not undermined, by considerations of commercial advantage or disadvantage.
  53. I note that there is a background concerning registration of prohibition notices and at paragraph 23 of his skeleton argument, to which he referred this morning, Mr Maxwell-Scott said this:
  54. "The Enforcement and Safety Information Act 1988 requires the HSE to maintain a database. Improvement notices or prohibition notices which impose requirements or prohibitions solely for the protection of persons at work (such as the PN in this case) are not required by that Act to be registered. See section 2(3). However, it is HSE policy to enter all notices on the databases, including those issued solely for the protection of persons at work."
  55. Mr Maxwell-Scott cites a source for that proposition.
  56. The policy is indeed set out in HSE documentation, however, we are not confronted on this appeal with any legal issue concerning registration and I need say no more about it.
  57. For all the reasons I have given I would, for my part, allow this appeal and set aside the judgment of Collins J.
  59. LORD JUSTICE KITCHIN: I also agree.
  60. MR WRIGHT: My Lords, thank you very much. May we deal with consequential matters. Setting aside the order of Collins J will have the effect of reinstating the orders that the Tribunal made.
  61. LORD JUSTICE LAWS: That must be uncontentious, I assume. Yes.
  62. MR WRIGHT: Thank you for that. So far as costs are concerned, in the Tribunal we provided in default of agreement more detailed assessment in a County Court and in the High Court we provided an addition that in default of agreement, again, costs should be subject to detailed assessment. With that in mind, although we have schedules of costs prepared today and available, I wonder whether the sense of it would be also to order here that the costs of this appeal be subject to detailed assessment, if not agreed, in the same forum as the previous costs will be subject.
  63. LORD JUSTICE LAWS: Given what you have done in the lower courts that may be right but we usually make a summary assessment in a case where the appeal is one day or less.
  64. MR WRIGHT: My Lord, we can do that.
  65. LORD JUSTICE LAWS: Has Mr Maxwell-Scott seen your schedule?
  66. MR MAXWELL-SCOTT: My instructing solicitors have seen it. I presume it covers today rather than what has happened in the lower courts.
  67. MR WRIGHT: It covers all of the costs of this appeal. So they run from a date after the appeal before Collins J's. So they are for this court.
  68. LORD JUSTICE LAWS: If Mr Maxwell-Scott's solicitors has seen them and subject to any objection from him I do not see why we should not save the parties some cash by summarily assessing these appeal costs if the material is available to do that. If there is an insuperable difficulty tell us.
  69. MR WRIGHT: No, my Lord, there is not. They do relate to the appeal in this court and the preparation of it rather than to what has happened in lower courts.
  70. LORD JUSTICE LAWS: We have not seen a schedule. Maybe you are content with the figures, I do not know?
  71. MR MAXWELL-SCOTT: Yes, we are, my Lord. They are comparable to ours.
  72. LORD JUSTICE LAWS: Then subject to my Lords we will order that the inspector have her costs of this appeal and assess the costs in the sum in the schedule. You are not asking us to do anything about the costs below?
  73. MR WRIGHT: My Lord, yes. Of course, in allowing the appeal the orders of Collins J are set aside so you need to provide for those costs as well and I would ask for the inspector's costs of that appeal.
  74. LORD JUSTICE LAWS: That would have to be subject to a detailed assessment because there is no material to do anything else, is there?
  75. MR WRIGHT: My Lord, yes. Indeed, they can travel perhaps in tandem with the Tribunal's costs.
  76. LORD JUSTICE LAWS: Mr Maxwell-Scott?
  77. MR MAXWELL-SCOTT: I would agree with that, my Lord.
  78. LORD JUSTICE LAWS: You do not have any argument that you should not pay the Administrative Court costs in principle, the costs in the High Court?
  79. MR MAXWELL-SCOTT: We were not necessarily expecting to be addressing this point this afternoon. Would it be possible to reflect on it? At the moment I cannot think of any point of principle as to why --
  80. LORD JUSTICE LAWS: I think we may reasonably ask you to deal with the costs, Mr Maxwell-Scott. If you mean you were assuming we would have reserved our judgment you should make no such assumption.
  81. MR MAXWELL-SCOTT: My Lord, I cannot put forward any point of principle as to why costs should not follow the event.
  82. LORD JUSTICE LAWS: I would not have thought so.
  83. MR MAXWELL-SCOTT: I would ask that the Tribunal's decision on costs, namely, that there be 75 per cent of costs rather than 25 per cent, we would rather that 100 per cent be left undisturbed.
  84. LORD JUSTICE LAWS: I have not heard any other application otherwise as yet and I do not think we are going to.
  85. MR WRIGHT: My Lord, no. I stand by what I said before the Tribunal, that we should give some concession to costs there because the notice had been modified and was not affirmed as serve. So I said to the Tribunal it was appropriate for us to --
  86. LORD JUSTICE LAWS: Understood. Subject to my Lords, (a) the order of the Tribunal will remain undisturbed, (b) the inspector shall have her costs before the High Court and be subject to a detailed assessment if not agreed, (c) she shall also have her costs of this appeal summarily assessed to the figure in the schedule.
  87. MR WRIGHT: I am very much obliged, my Lords.
  88. LORD JUSTICE LAWS: Thank you very much indeed. There only remains to thank counsel for their assistance in this, for me anyway, unusual case.

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