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Cite as: [2016] EWHC 1856 (Admin)

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Neutral Citation Number: [2016] EWHC 1856 (Admin)


Royal Courts of Justice
London WC2A 2LL
7 July 2016

B e f o r e :




Computer-Aided Transcript of the Stenograph Notes of
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Mr S Butler (instructed by DPA) appeared on behalf of the Appellant
Mr D Collins (instructed by Capsticks) appeared on behalf of the Respondent



Crown Copyright ©

  1. MR JUSTICE HOLMAN: This is a statutory appeal from the decisions of a committee of the General Dental Council (the GDC), reached on 12 February 2016 after a two day hearing. The appellant dentist appeals both against some of the findings of fact which were reached and also against the sanction of erasure which was imposed.
  2. With the complete agreement of both counsel today, they and I have collectively decided to adopt a two stage process to this appeal. At this first stage I have heard submissions upon, and now rule upon, the appeal against certain of the findings. At a second stage, which will be this afternoon, I will hear submissions upon, and rule upon, the sanction in the light of the findings which were made, but subject to any alterations that I now make to those findings at this stage. It is indeed essential, if there is to be focussed consideration this afternoon on the question of the appropriate sanction, that there is first clarity as to what findings do or do not stand.
  3. The essential factual background is that the appellant was a dentist registered with the General Dental Council. He himself is of Spanish origin, and I understand that his first language is Spanish. I bear that point in mind in my consideration of this case and of answers which he gave to questions, both during the investigation process and at the professional conduct hearing itself. The appellant in fact practised as a dentist in the Isle of Man, and as I understand it, his registered address with the General Dental Council was always an address in the Isle of Man.
  4. Dentists are required to renew their registration annually and to pay the required fee. It transpired that there was a period of several weeks during which the appellant had failed to pay his retention fee and so he was removed from the register. He applied by a form signed on 10 January 2014 to be restored to the register. That form is now at bundle tab 6, page 139. It says that he is applying to be restored to the register as a dentist. It gives as his registered address an address in the Isle of Man which, as I understand it, is the same address at which he had indeed previously been registered.
  5. On the second page of the form, now bundle page 140, there is a heading, "Occupation since you have been off the register". Beneath that the form states, "This section should be completed by all applicants." Underneath that there are two questions. After each question, there are two  tick boxes for answering either yes or no. The first question is as follows:
  6. "1. Have you been working as a dentist abroad during the time you were not registered with the GDC?"

  7. The second question is:
  8. "2. Have you been working as a dentist in the UK during the time you were not registered with the GDC?"

  9. The appellant ticked the "no" box in answer to both those questions.
  10. There are further sections to the form, including section 4 under a heading, "Health and self-declaration". This is now at bundle page 144. Section 4 included as question 3 the following question:
  11. "Have you been convicted of a criminal offence or cautioned or are you currently the subject of any police investigations which might lead to a conviction or a caution in the UK or any other country?"

  12. The appellant ticked the "no" box.
  13. At the foot of that page of the form, there is the following statement:
  14. "I know that if I make any false declaration in this application

    My registration may be refused and/or

    I may be referred to the appropriate authority who may prosecute

    I may be charged with professional misconduct."

  15. A little further on, there is in bold the statement, "The information I have given here is true." That was signed by the appellant and dated 10 January 2014.
  16. The GDC learned that in fact the appellant had received a conviction for a drink driving offence in the Isle of Man during 2012. As a result, on 23 September 2014 a caseworker at the GDC, Craig Richards, sent an email to the appellant. As well as asking some other factual questions not relevant to this appeal, the email asked the following:
  17. "We have also received information that you may have been convicted of drink-driving in 2012 -- can you confirm if this is the case? If so, please can you provide details of the offence, the court, and the date of the hearing? Please can you also confirm if you have any other cautions or convictions and any details for the same."

  18. The appellant replied to that email by an email dated 29 September 2014, now at bundle page 132. He first dealt with that part of the email of 23 September 2014 which is of no particular relevance to this appeal. He continued:
  19. "Regarding the drink-driving offence, I have been convicted on Tuesday 18 September of 2012 due to drink-driving. There was an economic fine and a suspension from driving for two years. [The names of his then employers] were immediately informed about this issue when it has happened. [The name of his current employer in September 2014] is also fully aware of this.

    My legal body organisation has just confirmed to me that this issue should have been reported to the GDC by myself back in 2012. I truly apologise as I was not aware of this and at the time the owners of the practice presented no objection relating to this issue, which has now spent."

  20. It subsequently turned out that the truth and reality is that, as well as that conviction in 2012 for drink-driving in the Isle of Man, the appellant also had a conviction in 2011 in Ireland, also for a drink-driving offence. It was indeed later admitted by the appellant, and found proved, that on 28 March 2011 he was convicted by a court in Fermanagh and Tyrone of driving a motor vehicle after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit.
  21. These events resulted in formal charges before the Professional Conduct Committee of the General Dental Council. The manner in which the charges were formulated, as amended at the hearing, is now set out at tab 4, pages 32 to 34 of the present bundle. They break down the narrative that is alleged into a long list of individual propositions, although the underlying essence of what was charged here really related to three matters. The first was ticking "no" to each of the questions whether he had been working either in the UK or abroad during the time he was not registered. The second related to ticking the answer "no" in answer to the question whether he had been convicted of a criminal offence. The third related to the answer which he gave in his email dated 29 September 2014 to the questions put in the email from Mr Richards of 23 September 2014.
  22. Much of what was alleged was indeed admitted and found proved. It is important to record that, from the outset, the appellant admitted that when he ticked the box saying "no" in answer to the question whether he had any convictions, he had done so dishonestly. That appears from paragraphs 5(b) and 7 of the detailed findings of fact. Paragraph 5(b) found, as was admitted, that he had placed a tick in the box marked "no" in response to the question at section 4 in relation to criminal convictions. Paragraph 7 of the findings found that:
  23. "Your conduct at 5(b) above was:

    7(a) misleading; admitted and found proved.

    7(b) dishonest in that you knew when you completed and caused the application to be submitted that you:

    7(b)(i) had been convicted of the criminal offences set out at paragraphs 1 and 2 above.

    Admitted and found proved."

  24. So in this case there was from the outset an admission of a degree of dishonesty in wrongly saying that he had not been convicted of the two drink-driving offences. He denied, however, that there was dishonesty in his answers in the form with regard to whether he had been working whilst he was not registered. He admits that he knew that the Isle of Man is not part of the United Kingdom; and it is strongly submitted on his behalf that when he ticked the "no" box in answer to the question whether he had been working as a dentist in the United Kingdom during the time he was not registered, that was an entirely correct and truthful answer, as indeed, standing on its own, it was and is.
  25. His oral evidence with regard to why he ticked the "no" box in answer to the question whether he had been working as a dentist abroad during the time he was not registered with the GDC is more difficult to follow. The clearest evidence in relation to this was his answers to some questions from a member of the committee called Miss Besau, now at transcript pages 49 and 50.
  26. Q. ... when you filled out this form, did you believe the Isle of Man to be part of the United Kingdom?
    A. No.
    Q. Where did you believe it to be, the Isle of Man; if you did not believe it to be part of the UK, where did you believe it to be?

    A. It is independent. It is not part of Europe either I believe.

    Q. If you believed it to be an independent island, what made you apply for registration with the General Dental Council?
    A. I know GDC regulates the dentistry on the Isle of Man as well. However always when you fill forms, many forms, it is all they ask for specifically for the Isle of Man. All other countries, they specify other countries and British Isles. I did not interpret that as if they referred that I had been working only in the UK as it was not specified British Isles or other country ..."

  27. A little further on, the chairman of the committee asked:
  28. Q. Just following on from that, given that you knew it was not part of the UK, so you ticked no. Why did you think it was abroad?
    A. What did I think?
    Q. Did you think it was abroad?
    A. No, I did not think it was abroad ... possibly should have written by hand that I had been working on the Isle of Man, but answering those questions I was not trying to mislead or be dishonest. Possibly should have written that I had been working on the Isle of Man ..."

  29. The difficulty in relation to this aspect of the case follows from the precise way in which the charges had been formulated and the committee recorded their findings of fact. The relevant charge was charge 5(a), which read as follows:
  30. "On or about 10 January 2014 you completed and caused to be submitted to the GDC an application to be restored it to the register ... and:

    (a) placed a tick in the box marked 'no' in response to the questions at section 1, which read:

    [and then the question in relation to working in the UK is set out];

    [and then the question in relation to working abroad is set out]."

  31. The material part of the findings is as follows:
  32. "5. On or about 10 January 2014 you completed and caused to be submitted to the GDC an application form to be restored to the register and:

    5(a) placed a tick in the box marked 'no' in response to the questions at section 1 which read:

    5(a)(i) have you been working as a dentist in the UK ...

    Admitted and found proved.

    5(a)(ii) have you been working as a dentist abroad ...

    Admitted and found proved."

  33. Thus in their findings the committee split up the questions into 5(a)(i), which related to working in the UK, and 5(a)(ii), which related to working abroad.
  34. At paragraph 6 they then continued:
  35. "6. Your conduct at 5(a) above was:

    6(a) misleading.

    Found proved ..."

    And then:

    "6(b) dishonest ..."

  36. As Mr Simon Butler submits on behalf of the appellant, 5(a) generically included both questions, namely that with regard to working in the UK and that with regard to working abroad. On the face of it, the committee found his answers to have been misleading and dishonest in relation to both questions. Mr Butler therefore submits that the committee fell into error in considering his answers dishonest when the answer in relation to working in the UK was in fact correct and truthful. That submission could not be made, and the difficulty would not have arisen, if in their finding under paragraph 6 they had begun by saying, "Your conduct at 5(a)(ii) above was ... misleading ... dishonest." This thus enables Mr Butler to seek to argue that this committee in some way considered or found that the Isle of Man was part of the United Kingdom.
  37. In my view, however, it is clear on a proper analysis that this is not what the committee were finding. They knew perfectly well, as indeed did the appellant, that the Isle of Man is not part of the United Kingdom. The view that the committee were taking, which in my view is the only common sense view which can be taken of those two questions where they appear in the form, is that, read together, they require an applicant to state whether he has been working, during the time he was not registered, anywhere in the world, the question being subdivided into the UK and, correlatively, abroad, which means in context anywhere in the world other than the UK. The committee stated that they:
  38. "... considered that your conduct in ticking the boxes marked 'no' was misleading. The Committee considered that by ticking both boxes indicating that you had not worked as a dentist either in the UK or abroad, it is more likely than not that the person processing the form would be led to believe that you had not worked anywhere as a dentist whilst unregistered."

  39. They went on to give their reasons why answering "no" to both questions was in their view dishonest.
  40. It is, I think, clear, on a fair reading of this case as a whole, that if the appellant had ticked "no" to working abroad but "yes" to working in the United Kingdom, he would not have been in the trouble that he was later in. I accept the submission of Mr Butler that, read literally, the reasoning of the committee, broken up in the way that it was, might seem to convey a mistaken belief that the Isle of Man is part of the United Kingdom. But read sensibly and as a whole, it seems to me that they were clearly concluding, and were justified in concluding, that there was dishonesty in the manner in which the appellant answered those two questions collectively. There is indeed plenty of blank space on the form, now at bundle page 140, in which he could very easily have elaborated that although he had ticked that he was not working in the UK or abroad, he had been working in the Isle of Man.
  41. So insofar as this appeal relates to the issue of working in the UK or abroad, I dismiss it.
  42. The second and separate matter relates to the email of 29 September in answer to that of 23 September. The essential submission of Mr Butler is that a failure to answer the question, namely, "Please can you also confirm if you have any other cautions or convictions and any details for the same" cannot of itself amount to dishonesty. Mr Butler submits that it is simply a failure to answer a question, and indeed he says it is somewhat analogous to a "no comment" answer in an interview.
  43. The appellant had been asked at the hearing why he had not answered that question in his email. He said, when asked questions in chief, now at bundle page 40, that:
  44. "I want to be as cooperative as I could of course and I was raising the point, I was trying to clarify the points raised in the previous email and give details of the questions being asked but I did not answer the second question. That was oversight from my part. Again I was not minded to mislead or be dishonest at all by not answering that question. It was a pure mistake and oversight and I would expect also that if -- first of all at least she would have those details from me and also that I could have been asked again to -- was not a misstatement to answer that second question but was a pure oversight and if I could have been asked again, I would happily have provided the details again ..."

  45. Later, under questions from the chairman of the committee at bundle page 52, he repeated that:
  46. "I know that in January I did -- I was dishonest with that. I'm really, really sorry I did that. Then in September, again it was not my intention to mislead, it was pure mistake."

  47. So the position of the appellant in the course of his evidence was that it was purely out of oversight or mistake that he had not answered that second question with regard to any other convictions, and that he had not in any way been dishonest or deliberately trying to mislead.
  48. Mr Butler, with some justification, says that the original email of 23 September 2014 was not well drafted. It would frankly have been much more satisfactory if Mr Richards had asked some direct questions such as "Have you ever been convicted anywhere worldwide? If so, give full details of all convictions anywhere worldwide ..." The language "please can you also confirm if ..." does have ambiguity within it.
  49. However, as Mr David Collins submits on behalf of the General Dental Council, it was not the case or evidence of the appellant that he had in any way been misled by some ambiguity in the way in which the question was asked. Rather, his case was that it was simply a mistake and oversight that he did not answer the question. It seems to me, therefore, that there is in the end nothing in Mr Butler's point with regard to the rather inept form of the question.
  50. Mr Butler submits that Mr Richards could have sent a follow up email prompting the appellant to answer the question which he had failed to answer in his email of 29 September. That of course is true, but does not of itself assist on the question whether, when he did send his email of 29 September 2014, the appellant was at that time being dishonest.
  51. The committee dealt with this aspect of the case in paragraphs 9 and 10 of their findings. At paragraph 9, they stated:
  52. "On or about 29 September 2014 you replied to an email from the GDC that referred to your conviction at paragraph 2 above and asked you to '... confirm if you have any other cautions or convictions ...' without informing the GDC of your conviction at 1 above [viz the 2011 conviction in Fermanagh].

    Admitted and found proved."

  53. They continued at paragraph 10:
  54. "Your conduct at 9 above was dishonest in that you knew when you replied to the GDC's email that you:

    10(a) had been convicted as set out at paragraph 1 above;

    10(b) were obliged to disclose the conviction at 1 above to the GDC.

    Found proved ..."

  55. The committee then set out at some length their reasons for finding that failure to have been dishonest. They record that he himself had stated in the course of his evidence that it was "an oversight and was not done with the intention to mislead". They record that:
  56. "You told the committee that it was not a conscious decision to leave out information and not disclose your convictions."

  57. So the committee were well aware of his evidence and position in this regard. They referred, however, to duties upon registered dentists to inform the GDC of any convictions, and they referred to the original form which he had signed in January 2014. They continued:
  58. "Given that, you must have been aware in September 2014 that you were obliged to disclose the [Fermanagh] conviction ..."

  59. They continued:
  60. "The committee had sight of the email and your response. It noted that you answered all questions with the exception of the question asking whether you have any other cautions or convictions and asking for any details of the same. The committee considered that by not answering this specific question but answering the others your email was misleading. The committee was satisfied on the balance of probabilities that not responding to the specific question asked was deliberate rather than an oversight. Further, the committee was of the view that the obligation was on you throughout to disclose your convictions and not for the GDC to make repeated requests for information. The committee did not accept the submission made on your behalf that there could be no motive for you not answering this question ...

    The committee considered, based on all of the above, that your conduct was dishonest by the standards of the reasonable and honest dentist and you knew your conduct was dishonest by those standards."

  61. It seems to me that where the committee stated: "The committee was satisfied on the balance of probabilities that not responding to the specific question asked was deliberate rather than an oversight" that is decisive of this aspect of this appeal. The committee had heard evidence at length from the appellant. He had asserted several times that he had made a mistake and that it was an oversight. They were entitled to reject that evidence by him; and having rejected it, they were entitled to make the finding that his failure to answer the specific question "was deliberate rather than an oversight". It further follows that they were entitled to conclude that he had made that deliberate omission dishonestly.
  62. So, despite the cogent way in which Mr Butler has argued this point, I am satisfied that there is in fact no substance in this appeal insofar as it challenges any of the findings of fact made on 12 February 2016, and to that extent it will be dismissed.
  63. This afternoon I will consider and rule upon the quite separate limb and stage of this appeal which pertains to the sanction imposed.
  64. (Later)
  65. This is now a continuation of the judgment I gave this morning, now addressing the second stage of this appeal, namely the appeal against the sanction of erasure which was imposed. It is quite clear from their reasons in relation to the sanction that the committee considered that the dishonesty which they had found admitted or proved in this case was, in aggregate, serious. They were also obviously concerned that there were not one, but two, convictions in the space of 18 months for alcohol related driving offences. They said in relation to that:
  66. "The committee was surprised that more material was not before it to evidence that you, as a young professional, have addressed the issues relating to these two convictions. The committee was satisfied, based on the information before it, that there remains a risk of repetition of the behaviour that led to the two convictions."

  67. With regard to the dishonesty, it is quite clear that the committee was concerned by what they regarded as its persistence; and they considered the initial dishonesty when the appellant filled in the form in January 2014 as being "compounded" by his omitting to answer the question about other convictions in his email of 29 September 2014. It is clear, for they use the word more than once, that they treated the case as one involving "cover up". The relevance of that is that published guidance of the GDC states, as they quoted in their decision:
  68. "Erasure will be appropriate when the behaviour is fundamentally incompatible with being a dental professional: any of the following factors, or a combination of them, may point to such a conclusion:

    Serious departure(s) from the relevant professional standards;

    Serious dishonesty, particularly where persistent or covered up;

    A persistent lack of insight into the seriousness of actions or their consequences."

  69. So there is the reference there to dishonesty, "particularly where persistent or covered up".
  70. The committee continued:
  71. "You were given the opportunity to correct your initial dishonesty but instead chose to be dishonest again in order to cover up your initial dishonesty."

  72. In support of this appeal against sanction, Mr Butler has made many points in his written documents in relation to issues such as insight, remorse, and other matters. Frankly, those points cannot weigh with me, for they were considered by the committee and go to weight. It is only very rarely that this court on appeal should or could interfere with the decision of the professional body as to sanction on the basis of weight.
  73. However, during the course of the submissions of Mr Butler this afternoon, another point has emerged which in my view is, or may be (I stress the words "may be"), of some significance. It is clear from close examination of the documents available to me today that it has been the consistent assertion of the appellant that he had himself informed his employer in the Isle of Man of not only the 2012 conviction but also the 2011 conviction. The material in relation to that is the following.
  74. First, there is a letter dated 3 June 2015 from a firm of solicitors in the Isle of Man called M&P Legal, in which they address on behalf of the appellant the allegations that the GDC had set out in an earlier letter. On the third page of that letter, now bundle page 148, under a heading "Allegation 3", which pertained to the September emails, the solicitors said:
  75. "This was a foolish omission by [the appellant] for which he is remorseful ... he was unaware of the duty to tell the GDC. In regard to both convictions [the appellant] informed his then employers ... he was not told by either employer that he had a duty personally to inform the GDC."

  76. I stress in that passage the words "both convictions".
  77. Next, the appellant made a witness statement on 18 February 2016, in preparation for, but in advance of, the oral hearing. At each of paragraphs 18 and 20 of that statement, now bundle page 225, he clearly states that he:
  78. "... informed my employer at the relevant time of both convictions. At the time my employer was discussing matters with the GDC, they were aware I had two convictions for drink driving."

  79. That effectively is repeated at paragraph 20, where he said:
  80. "I had informed both employers of the two convictions at the relevant time. I was not informed that I was under a duty to inform the GDC. The GDC had received the information from my employer. I would have expected my employer to notify the GDC of all relevant matters."

  81. So pausing there, the appellant was saying in advance of the hearing that he had informed his employers of both convictions, and also that he would have expected his employer to notify the GDC of both convictions, given that the employer is known to have notified the GDC of at least one of the convictions. During the course of his oral evidence, the appellant said, in answer to questions from a member of the committee, at transcript day 1-22, now bundle page 51:
  82. "... also I honestly did not know I had to declare them to the GDC when they happened. My employers knew -- were fully aware of these convictions ..."

  83. Finally, but importantly, when Mr Butler on behalf of the appellant was making his submissions in mitigation as to the sanction, he said, at transcript page D2-13, now bundle page 90:
  84. "His employer then raised issues about his previous convictions [I emphasise the use of the plural] for driving, which is why the investigation commenced, and that was because [the appellant] has always notified his employers about these convictions [I emphasise the plural] ... he did notify them of those convictions.

    The employer then notified the General Dental Council and the two convictions [I emphasise the plural] came to the surface ..."

  85. It seems to me that, as that evidence had been repeatedly given by the appellant in the forms and in the ways I have indicated, and as that point was so clearly being developed and relied upon by Mr Butler as I have indicated, it really was necessary to pause to establish whether what the appellant was saying was true. Today, in this courtroom, the only person present on behalf of the GDC is their counsel, Mr David Collins. He does not have the GDC file; there is no official of the GDC present; and it simply is not possible to investigate today exactly what was or was not reported to the GDC by the employer.
  86. In my view, the committee needed to do what they could to investigate and get to the bottom of this point and to try to establish what the true facts are. On the question of what the appellant informed his employers about, and whether it was one conviction or two, the truth of what he says would have to be assumed in his favour unless there is evidence to contradict it. On the separate question of what information the employer gave to the GDC, that of course is only speculative on the part of the appellant, and there is not, in my view, any basis for assuming that the employer notified the GDC of both convictions, when it should be possible to establish the truth one way or another from examination of the whole of the GDC file. But obviously if it is true that the appellant had notified his employer of both convictions, and if indeed the employer then informed or notified the GDC of one of them, it would be surprising if the employer had not also notified them of the other one.
  87. Nowhere in their reasoning in relation to sanction do the committee refer one way or another to this question of whether or not the appellant had informed his employer of both convictions, or consider its relevance to mitigation of sanction. If (I stress if) the appellant had notified his employer of both convictions, then it seems to me that that is a matter which is capable (I put it no higher than that) of being relevant to mitigation.
  88. In the course of argument, I suggested an analogy. Suppose a young barrister receives a criminal conviction of a kind which he is required to report to his professional body. He fails to report it. Inevitably he will be in trouble with that body when the facts come to light. If, however, he is able truthfully to say that, although he did not report it to his professional body, he had reported it to the head of his chambers, then it seems to me that that is capable of being a mitigating factor. Further, it is capable of impacting on the view that is taken as to "cover up", because it may be difficult sensibly to consider covering up that which has already been revealed and is known.
  89. In this case, the committee decided to impose what is the most severe sanction, namely erasure. The appellant is still a young practitioner, aged about 30. As I understand it, there is no evidence of the slightest lack of competence in his performance, or of the slightest direct risk to patients. In saying that, I do not in any way minimise the risk inherent to patients from dentists or other medical practitioners who allow themselves to drink and then drive such that they receive not one but two convictions in a relatively short space of time for excess alcohol. I perfectly understand how that of itself was very concerning to this committee. They felt that there may be some problem of drinking in this case which the appellant had not addressed. Clearly, it may be only a small step between driving under the influence of alcohol and treating patients while under the influence of alcohol. So there is that discrete aspect of this case which I in no way minimise.
  90. But subject to that, as I understand it, there is no evidence that there was ever any risk to any patient; and indeed, as I understand it, there is a body of evidence to the effect that the appellant was a good dentist, admired and respected by his patients. So the sanction of erasure upon a still young practitioner, somewhat still on the threshold of his career, when there has been no risk to patients, and I stress, no dishonesty directly against any patient, is obviously a severe one. I stress that I am not saying in this case that it was an unjustified or disproportionate one. But it does seem to me that there may be a mitigating factor in this case, namely that he had in fact reported both convictions to his employers, which may (I stress may) in the view of the committee just tip the balance so that some lesser sanction can be imposed.
  91. Mr Collins, on behalf of the GDC, urged me to take the view that even if the facts are entirely as stated by the appellant, it makes no difference. But it seems to me that it is capable of making a difference in this case. The appropriate body to decide whether or not it does make that difference is the expert professional body.
  92. For that reason, I propose to remit the question of the appropriate sanction to the Professional Conduct Committee, which should be constituted if at all possible by the same constitution who heard this case in February. I will order them to reconsider whether erasure is the necessary and appropriate sanction, after complying with some somewhat detailed directions of the court. Those directions are set out in a schedule to the order, but the essence of them is to summarise what I have now said in this judgment. The bottom line is that:
  93. "The committee must investigate and establish the truth or otherwise of what the appellant asserts. In the event that it is correct (or must be assumed in his favour if there is no evidence to contradict it) that the appellant did inform his employer of both convictions, the committee must reconsider (i) whether that impacts on their conclusion as to cover up; and (ii) in any event, whether it mitigates the sanction of erasure."

  94. MR JUSTICE HOLMAN: Is there anything else that either of you wish or need to say?
  95. MR BUTLER: No, my Lord, thank you.
  96. MR JUSTICE HOLMAN: All right.
  97. If the usher hands that back to you, Mr Butler, can you ensure that it is accurately typed up and then emailed to my clerk. Do you know or have access to his email address? I think you probably do, because you emailed a skeleton argument to him.
  98. MR BUTLER: No, that came direct from the Administrative Office, my Lord.
  99. MR JUSTICE HOLMAN: Oh, did it? All right.
  100. MR BUTLER: Yes.
  101. MR JUSTICE HOLMAN: If you hang around via the usher I will let you know.
  102. MR BUTLER: My Lord, for the sake of finality, what would you like me to include in the order in relation to costs?
  103. MR JUSTICE HOLMAN: Well what application, if any, do either of you make?
  104. MR BUTLER: Well in the circumstances, it appears to me there should be no order as to costs.
  105. MR JUSTICE HOLMAN: You are not applying for costs? No. What do you say?
  106. MR COLLINS: My Lord, in those circumstances I think --
  107. MR JUSTICE HOLMAN: I think I agree. I think one might say that the outcome today in sporting terms is a bit of a draw.
  108. MR BUTLER: Quite.
  109. MR JUSTICE HOLMAN: So you're not applying for costs, and Mr Collins isn't applying for costs, so will you then say that there is no order as to the costs of either party of and incidental to today.
  110. MR BUTLER: Thank you.
  111. MR JUSTICE HOLMAN: All right. Well thank you all very much indeed.

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