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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Faulkner, R (on the application of) v Director of Legal Aid Casework [2016] EWHC 717 (Admin) (08 March 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/717.html
Cite as: [2016] 2 Costs LR 237, [2016] EWHC 717 (Admin), [2016] 4 WLR 178

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Neutral Citation Number: [2016] EWHC 717 (Admin)
CO/2423/2015

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

Royal Courts of Justice
Strand
London WC2A 2LL

8 March 2016

B e f o r e :

MR JUSTICE MOSTYN
____________________

Between:
THE QUEEN ON THE APPLICATION OF FAULKNER Claimant
v
DIRECTOR OF LEGAL AID CASEWORK Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr Hugh Southey QC and Mr Jude Bunting (instructed by Irwin Mitchell) appeared on behalf of the Claimant
Mr Paul Nicholls QC and Mr Malcolm Bindling (instructed by Legal Aid Agency) appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE MOSTYN: Daniel Faulkner makes a claim in judicial review proceedings concerning a sum of 6,500. This sum of 6,500 was awarded to him in damages for unlawful State detention in contravention of Article 5 of the European Convention on Human Rights by the Supreme Court on 1 May 2013. The question that falls for decision is whether Mr Faulkner should receive that sum of 6,500 intact or whether it should be subjected to the Legal Aid Statutory Charge which would result in him receiving nothing.
  2. The history up to 1 May 2013 is fully encapsulated in the Supreme Court judgments, particularly that of Lord Reed, found under the Neutral Citation Number [2013] UKSC 23. The decision of the Supreme Court was to allow the appeal of the Parole Board and to dismiss the cross-appeal of Mr Faulkner. The award of the Court of Appeal of 10,000 damages for breach of Article 5 was reduced to 6,500.
  3. Inevitably, there followed a dispute about costs. The Parole Board accepted that the costs awarded in favour of Mr Faulkner made by the Court of Appeal - which was that they should pay his costs both in the Court of Appeal and at first instance - should stand. However there was no agreement reached about the outcome on costs in the Supreme Court.
  4. Both parties made extensive written submissions. Mr Faulkner's submissions, drafted by Mr Southey QC, are dated 29 April 2014. In those submissions Mr Faulkner sought an order for costs in his favour even though he had lost the case in the Supreme Court.
  5. In those written submissions (at paragraph 3.3) Mr Southey said:
  6. "3.3 However, in this case, the practical results of there being no order for costs in Mr Faulkner's favour would be the same, even if he were not legally aided. That is because the practical effect of such an order would be to effectively wipe out the award of damages in his favour:
    3.3.1 In the event that Mr Faulkner had brought this litigation with the benefit of private funding, the effect of there being no order as to costs or an order for costs against him would be that the damages he was awarded would be reduced to zero as he would either have to bear his own legal costs or pay the costs of an agent of the state, in this case the Parole Board;
    3.3.2 Given that Mr Faulkner brings this litigation with the benefit of public funding from the Legal Services Commission, the effect of there being no order as to costs or an order for costs against him would also be that the damages he was awarded would be reduced to zero. In the event that an order for costs were made against him, he would have to pay the costs of an agent of the state, in this case the Parole Board. In the event that no order as to costs were made, Mr Faulkner would still lose his damages through the likely payment of the 'statutory charge'.
    .....
    3.4.4 Pursuant to Regulation 47 (3) of the [Community Legal Service (Financial) Regulations 2000, SI 2000 No 516], the Legal Services Commission may, if it considers it equitable to do so, waive some or all of the amount of the statutory charge. Regulation 47 (2) of the 2000 Regulations provides that the Legal Services Commission will only do so if (a) it funds legal representation in proceedings which it considers have a significant point of public interest and (b) the Commission considers it cost effective to fund those services for a specified claimant or claimants, but not for other claimants or potential claimants who might benefit from the litigation. The Legal Services Commission has not given any indication to Mr Faulkner that it will waive some or all of the amount of the statutory charge in this case."
  7. Finally, I quote from paragraph 3.6 of the written submissions which is in there terms:
  8. "3.6 Given these factors, it would be unjust and unfair for there to be no order for costs in Mr Faulkner's favour. It would be plainly unfair for Mr Faulkner to obtain no real remedy from these proceedings due to the operation of the 'statutory charge' in circumstances in which (a) the court has recognised that he should receive 6,500 in damages as a result of breach of Article 5 (4) that led to a loss of conditional liberty and (b) a large number of other litigants will now be able to fully litigate their claims as a result of Mr Faulkner's conduct of this appeal."
  9. That was the primary case made on behalf of Mr Faulkner, but that was not everything that was contained in the submissions to the Supreme Court because in paragraph 4.3 Mr Southey advanced an extensive legal argument based on decisions of the Strasbourg Court - in fact, I think he cited twelve cases from Strasbourg in total - as to why it would be a violation of Mr Faulkner's human rights were he not to receive in his favour an order for costs. It is fair to observe that those arguments are the same as the arguments which are advanced now before me. In paragraphs 4.4 and 4.5 reference was made to the decision of the Strasbourg Court of Scordino v Italy (No 1) [2007] 45 EHRR. There was specific reference made to paragraph 201 of that decision where the Strasbourg Court held as follows:
  10. "201 ..... the Court finds it reasonable that in this type of proceedings where the State, on account of the poor organisation of its judicial system, forces litigants to some extent to have recourse to a compensatory remedy, the rules regarding legal costs may be different and thus avoid placing an excessive burden on litigants where their action is justified. It might appear paradoxical that, by imposing various taxes payable prior to the lodging of an application or after the decision the State takes away with one hand what it has awarded with the other to repair a breach of the Convention. Nor should the costs be excessive and constitute an unreasonable restriction on the right to lodge such an application and thus an infringement of the right of access to a tribunal."
  11. It was based on that decision as well as analysis of the other cases there referred to that the conclusion was reached in paragraph 4.9.3 in these terms:
  12. "4.9.3 If no order for costs is made in Mr Faulkner's favour, he will be in a position in which one agent of the state (the Legal Services Commission) takes away with one hand what another part of the state has awarded with the other to repair a breach of article 5 (4). This is because, as set out above, the application of the 'statutory charge' is likely to operate so as to remove any damages that Mr Faulkner obtains."
  13. It is reasonable for me to note that the tenor of those submissions was that whilst acknowledgement was paid to the power, so it was asserted, within Regulation 47 (3) of the 2000 Regulations, to which I have referred, to waive the statutory charge, it was an unlikely event to occur and therefore justice demanded that the Supreme Court should not make an order for costs against him, but rather make an order for costs in his favour for otherwise events would unfold which would result in the statutory charge consuming to extinction his entire award.
  14. The Parole Board responded in writing on 13 May 2014. They took a traditional line encapsulated by the submissions in paragraph 13 which were in these terms:
  15. "13 In short, the Board was clearly the successful party. It succeeded on the question of principle raised by its own appeal, namely that an award of 10,000 was substantially out of line with Strasbourg authority, and it succeeded in achieving a substantial reduction in the sum of damages awarded. It succeeded entirely in resisting Mr Faulkner's cross-appeal on quantum, to the effect that 10,000 was too low, and also succeeded in resisting all of his alternative arguments, including some that were raised for the first time in this court. The Board is the successful party in this appeal, and, a fortiori, Mr Faulkner was not. Costs should follow the event."

    That was the Board's primary position.

  16. However the Parole Board went on, as one might expect, to cover all its bases should that primary argument not be accepted. In paragraphs 25 to 28 it advanced its secondary or reserve argument in these terms:
  17. "25 If, contrary to this, the Court has some sympathy with Mr Faulkner's position then it must in any event balance any unfairness to him against the unfairness to the Board of requiring it to bear the costs of an unsuccessful litigant in a case in which the Board itself has been successful. The consequence to the Board would be considerably greater than 6,500. It would involve both the loss of the ability to recover its own costs against the LAA, and a requirement to pay Mr Faulkner's full costs (presumably at commercial rather than legal aid rates). As the court is well aware, the Board is a public body with limited resources, including a limited litigation budget. It is wrong in principle that it should be required, notwithstanding its success in this appeal, to bear the full costs of the appeal in order to provide a benefit to Mr Faulkner which he himself chose to risk losing.
    26 In this regard, it may be noted that, if the Court accedes to Mr Faulkner's argument, the main beneficiary of that will be the LAA, which will thereby avoid a very substantial costs bill which it would otherwise be required to pay. The financial benefit to the LAA will likely be much greater, in absolute terms, than that to Mr Faulkner himself.
    27 The LAA has a discretion as to whether to enforce the statutory charge against Mr Faulkner. If, contrary to the Board's own view, it is unfair to Mr Faulkner that he be deprived of his award by the statutory charge, this court is entitled to say so. Any comments it makes will not bind the LAA, but any decision that body subsequently makes on enforcement of the statutory charge is in principle amenable to judicial review. The cost to the LAA of waiving the statutory charge is in principle amenable to judicial review. The cost to the LAA of waiving the statutory charge would be 6,500 i.e. commensurate with the benefit which Mr Faulkner has been deprived of.
    28 In short, even if there is force in Mr Faulkner's complaint that he is being unjustly deprived of the fruits of this litigation, the Board is not the proper target of that complaint, which should instead be directed against the LAA."
  18. The Parole Board rejected the suggestion that European human rights law mandated a different treatment and immunisation (if you will) of the damages award for the breach of the Convention. In paragraph 31 it was said, on the Parole Board's behalf:
  19. "31 ..... [Mr Faulkner] points to no case in which the operation of UK costs principles (including in claims under the HRA 1998) has been criticised by Strasbourg. The proposed analogy between what would have happened in a claim made in Strasbourg itself, and the situation which arises at the conclusion of an appeal to this court, is simply false. Mr Faulkner was awarded his costs by the Court of Appeal, both on the question of liability, and quantum. His problem arises because he has unsuccessfully sought to maintain that court's award, and indeed argued for a much higher award, on this appeal, a situation which has no analogue in proceedings in Strasbourg."
  20. It would have been helpful and certainly this case would not have needed to have been determined before me had the Supreme Court given a reasoned decision on the competing arguments. In fact, their decision was laconic in the extreme. In contrast to what has happened in other cases - certainly in my experience, and I refer to the well-known decision in Radmacher v Granatino (a matrimonial case) where written submission on costs were made and the Supreme Court rendered not only a formal order but also gave written reasons - in this case the Supreme Court merely rendered an order in these terms:
  21. "Mr Faulkner [shall] pay the Parole Board's costs in the Supreme Court in an amount to be determined in accordance with either Section 11 of the Access to Justice Act 1999 (and regulations made under it) or Section 26 of the Legal Aid (Sentencing and Punishment of Offenders) Act 2012 and regulations made under it."

    Nothing more was said; that is all.

  22. It has been left for counsel to make suggestions as to what might be inferred from those spare words and for me to seek to make sense of it.
  23. The first point to be made is that this case is governed by the Access to Justice Act 1999 and the regulations made under it rather than under LASPO (as I will call it) which came into force on 1 April 2013. This case, having been commenced before that date, is, by virtue of transitional regulations, to be governed under the old Access to Justice Act 1999 regime.
  24. One can safely infer that the Supreme Court did not accept the human rights arguments that were advanced on behalf of Mr Faulkner for - if they had accepted those arguments - then surely they would have made an order for costs in his favour. The fact that the Parole Board advanced not only a primary argument that there should be an order for costs in its favour but secondary arguments, as I have set out, does not detract in my view from that primary conclusion. The consequence of that primary conclusion by me I will deal with further a little later.
  25. A curiosity is the fact that the Parole Board have not sought since 3 April 2014 (which is almost two years ago) to enforce the order for costs in its favour. The Parole Board is of course an organ of the Government but, like so many separate agencies, it is an organ with its own budget subject to the winds of austerity. And one might have thought that it would have been interested in recovering from Mr Faulkner and the Legal Aid Agency the sums that were ordered in its favour by the Supreme Court. If the Parole Board wished to pursue its rights under the order made by the Supreme Court then it was incumbent on it to follow the procedure in Regulations 9 and 10 of the Community Legal Service (Costs) Regulations 2000, SI 2000 No 441. This applies in this case. Regulation 9 (5) applies in this case in circumstances where the Supreme Court has not made a quantification of the sum which it is reasonable for Mr Faulkner to pay pursuant to Section 11 of the 1999 Act. In such circumstances Regulation 10 requires the Parole Board within three months of the Supreme Court order (that is to say by 3 July 2014) to request a hearing to determine the costs to be payable to it.
  26. That hearing, I imagine, would be before - and the Regulations refer to the Clerk of the Parliaments because they were drafted before the advent of the Supreme Court - the Registrar of the Supreme Court. But so far as anybody can ascertain, no such steps have been taken by the Parole Board. It may be that the Parole Board is holding its hand to see what the outcome of this litigation would be, but that might be an illogical stance. It is true that by virtue of Regulation 12 (4) (c) there is power to enlarge time if there are good reasons justifying the Parole Board's failure to make an application by 3 July 2014 although, sitting here, it is hard for me to see what those good reasons might be.
  27. Had the Parole Board taken the steps in question then there would have been a determination of the sum which it was reasonable for Mr Faulkner to pay out of his award. The adjudicator would have considered the arguments which I now have to consider as to whether the award should, in effect, be immune. Depending on his or her decision on those arguments, there would have been a determination (which might have been nothing) of how much Mr Faulkner should pay. The balance of the costs of the Parole Board would have been paid by the Legal Aid Agency to the Board and that amount would have been added to the amount of the bill which would comprise the statutory charge. Had those steps been taken and had an amount been determined it was reasonable for Mr Faulkner to pay to the Parole Board - been adjudicated - then that amount would have constituted a set-off or lien against his award. (In this regard, see the decision of the Court of Appeal in Lockley v National Blood Transfusion Service [1992] 1 WLR 492.) It is perfectly plausible that had those steps been taken that the extent of the lien/set-off would have consumed the entirety of the award in damages and that this case would thereby have been rendered completely moot. Those steps have not taken place and therefore it falls to me to determine the matters that are properly before me.
  28. The question that falls for decision is whether the statutory charge could and, if so, should be waived in favour of Mr Faulkner in the light of the nature of the award in damages that he has received.
  29. The statutory charge has been a feature of the legal aid scheme since its very dawn (in Section 3 (4) and (5) of the Legal Aid and Advice Act 1949). It is to my mind pithily summarised in the Statutory Charge Manual issued by the Legal Aid Agency in April 2014 at paragraph 2.1 in these terms:
  30. "1 The statutory charge is designed to:
    (a) put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v Eli Lilly & Co [1987] 3 All ER 94 at 97 to 98.
    (b) ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and
    (c) deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.
    2 For about as long as there has been a solicitors' profession, solicitors have had a charge for any unpaid fees over any property they recover or preserve for their client. This is known as the 'solicitor's charge'. Section 73 of the Solicitors Act 1974 provides: 'Any court where a solicitor has been employed to prosecute or defend any suit, matter or proceeding may ..... declare the solicitor entitled to a charge on any property recovered or preserved through his instrumentality for his taxed costs ..... '
    3 The law that creates the statutory charge is based on the solicitor's charge. The principle behind the solicitor's charge is that it is fair for solicitors to be able to take their costs out of any property their clients recover or preserve because of the services provided."
  31. That describes, to my mind, accurately and succinctly the basic features of the statutory charge although, perhaps not surprisingly, they are surrounded by a great deal of secondary legislation.
  32. For my purposes I need only refer to the following parts of the Community Legal Services (Financial) Regulations 2000. By virtue of Regulation 44, some awards are exempted from the statutory charge. They are mainly awards granted in family proceedings and they extend to periodical payments of maintenance, sums paid under Section 5 of the Inheritance Act 1975 or Part IV of the Family Law Act 1996, and the first 2,500 of any award made under the Matrimonial Causes Act, other provisions of the Inheritance Act, the Married Women's Property Act or the Domestic Proceedings and Magistrates' Courts Act 1978. For those of us who cut our teeth practising in the Family Court it was a quotidian experience to insist when you represented a husband that you had at least 2,500 in cash out of the family funds. In addition, exempted from the statutory charge are clothes, house and furniture, tools or implements of a trade, half of redundancy payments, certain payments awarded by the Employment Appeal Tribunal and - where the statutory charge is in favour of a supplier who is a solicitor, which is only for certain limited types of legal services - the client's main or only dwelling.
  33. Where the charge is in favour of a supplier - which is only for certain limited forms of legal assistance described as "legal help" and "help for court", and the Funding Code makes it clear that these services are where the charge is in favour of a solicitor known as the supplier, only for those sorts of proceedings where the litigation is essentially not highly contentious, not even contentious at all - in those circumstances then by virtue of Regulation 46 there is power to waive the charge if its enforcement would cause grave hardship or distress to the client or would be unreasonably difficult because of the nature of the property. What is important to note is that Regulation 46 is strictly confined only to those cases where the statutory charge is in favour of the supplier.
  34. The only other circumstance where the statutory list of exemptions may be extended on a discretionary basis is given by Regulation 47, which is at the centre of the case before me. This is not a masterpiece of drafting by any means. Sub-paragraph (1) has been revoked and we are concerned with sub-paragraphs (2) and (3) as follows:
  35. "(2) Paragraph (3) applies where:
    (a) the Commission funds Legal Representation ..... in proceedings which it considers have a significant wider public interest; and
    (b) the Commission considers it cost-effective to fund those services for a specified claimant or claimants, but not for other claimants or potential claimants who might benefit from the litigation.
    (3) Where this paragraph applies, the Commission may, if it considers it equitable to do so, waive some or all of the amount of the statutory charge."
  36. There is no ambiguity about sub-paragraph (3). Sub-paragraph (3) clearly states that the Commission may, if it considers equitable to do so, waive some or all of the amount of the statutory charge and it will do so when the case is over because it is only then that the statutory charge arises. If the client has been successful in the case and recovered a full order for costs then there will be no statutory charge. So it follows as night follows day that sub-paragraph (3) only applies at the end of the case. That is when the Commission will make its decision.
  37. The question that arises is whether in terms of temporal assessment the events which are described in sub-paragraph (2) occur at the end of the case or whether they must have occurred at the beginning or during the case. Looking at the language of the regulation, it seems to me to be abundantly clear that the draftsman intended, even if he did not express himself at all well, that the decision as to whether, first, the proceedings had a wider significant public interest and, second, and more importantly, whether other cases should be funded in a different way has to have been made either at the beginning or during the course of the case. There is simply no other logical linguistic interpretation to be derived from this regulation. To my mind that is put beyond doubt by its replacement, Regulation 9 of the Civil Legal Aid (Statutory Charge) Regulations 2013 (SI 2013/503). In that, the language makes it absolutely clear beyond any doubt that the waiver decision is made at the end of the case but that the conditions precedent occur either at the beginning or during the course of the case.
  38. To my mind the difference between the two regulations does not demonstrate, as Mr Southey submits with a certain amount of force it has to be said, that the later regulation was changing the earlier regulation. To my mind the later regulation was clarifying the ambiguous meaning of the earlier regulation.
  39. So my first conclusion is that the construction point, as it has been described, is to be decided in favour of the defendant.
  40. The second question is this. Is it a violation of Mr Faulkner's human rights that the effect of my construction decision (which is to impose the statutory charge on his award of damages in circumstances where he did not obtain an award of costs in his favour and where the discretion that had been exercised in this case cannot be impugned in circumstances where the Legal Services Commission has correctly interpreted Regulation 47)?
  41. My first observation is, as I have already concluded, that for me to so conclude would be contrary to the necessary inference to be drawn from the decision of the Supreme Court. It seems to me to be indisputable that the Supreme Court has decided the human rights point against Mr Faulkner.
  42. However in circumstances where they declined to give us any reason at all, it is perhaps incumbent on me and reasonable for me to give my own reasons. The first is this. If it was so obviously a violation of the human rights of Mr Faulkner for his award of damages to be encroached by the statutory charge then one would have thought that it would have been listed as an exemption from the statutory charge within Regulation 44 of the 2000 Regulations, but it is not. The fact that something is not mentioned there does not necessarily answer the question. But it does demonstrate to me that Parliament must have decided not to expand the list of exempt items beyond those which have been in existence for many years.
  43. The second point is this that there has, as has been rightly submitted, never been any criticism whatsoever made by Strasbourg of our costs regime which is that first costs generally follow the event; and second is that when there is no order for costs you pay your own costs.
  44. The third reason is this. It is a feature of our costs regime, particularly so in civil proceedings but perhaps less so in family proceedings, that an award of costs is never in the full amount. The reason for this is to provide a deterrent to litigation, so it is said. That is why an assessment of costs on a standard basis rarely achieves more than 70 pence in the pound. The consequence of that is of course that even where there is an award of costs in favour of a successful party, the consequence of the assessment process may see a large part - perhaps even all - of a modest award of damages eliminated.
  45. A second feature of our regime is the availability to protect yourself by making a Part 36 or (what used to be called) a Calderbank offer. In such circumstances under Part 36 if you are able to produce a Calderbank offer in excess of the sum awarded you will receive your costs from the date or shortly after the date of your Calderbank offer. The effect of this may be - and often does - completely to wipe out the extent of the award.
  46. A third feature of our costs regime which has never been criticised by Strasbourg is the facility to make awards based on issues. This is specifically provided for in CPR 44.2 (5) and (6). The consequence, were the court to make an issue-based award (and there are plenty of examples in the books of doing that), is that if it were to decide that certain issues of costs were to be made in favour of a claimant and certain issues of costs were to be made against a claimant it may well be that a significant part or all of the modest award of damages is wiped out.
  47. I accept that an award of damages made under Article 5 (5) of the European Convention on Human Rights is a serious matter. Detention by the State is, on any view, a very bad business. The award of damages - although they are customarily modest - should reflect the fact that it is only in Article 5 (5) of the Convention that compensation is mentioned. However I do not accept that awards of damages for State detention pursuant to the Convention are a class apart from all other types of damages. I do not accept that because they are awarded to Mr Faulkner as a victim of human rights violation that they should be subjected to a process of immunisation in the way that perhaps damages for personal injury or an award of damages for, say, the loss of an eye or a leg would not. Naturally, State detention is a bad business but the consequences of many personal injuries are far more long-enduring than temporary State detention as happened in this case by virtue of delay in convening a Parole Board hearing.
  48. It is for these reasons that I reject the argument that there is some kind of special status or numinous quality to be attached to these damages. These damages are to be treated under the costs regime, in my judgment, in exactly the same way as any other damages. It is therefore for these reasons that the claim for judicial review is dismissed.
  49. We are now going to have a discussion about costs of a costs hearing, are we?
  50. MR NICHOLLS: We probably are. I hope they will not be controversial. I will just ask for my costs.
  51. MR JUSTICE MOSTYN: He is legally aided, is he?
  52. MR NICHOLLS: Yes.
  53. MR JUSTICE MOSTYN: Has he any money?
  54. MR SOUTHEY: No. He is subject to Section 11. It is not Section 11, it is now Section 26 but it is effectively the same provision. The Legal Aid Agency will have a choice as to whether it wants to try to enforce in circumstances where it will not have the advantage that some people have where there are parties facing the Legal Aid Agency-funded guidance and being able to - - - - -
  55. MR JUSTICE MOSTYN: You have not put in a signed statement of his means which would enable me to make an assessment.
  56. MR SOUTHEY: No.
  57. MR JUSTICE MOSTYN: So I cannot do that.
  58. MR SOUTHEY: No.
  59. MR JUSTICE MOSTYN: So it will be claimant's costs to be assessed but subject to the costs protection in Section whatever it is.
  60. MR SOUTHEY: Section 26.
  61. MR JUSTICE MOSTYN: You will draft an order to that effect.
  62. MR NICHOLLS: We can draft an order to that effect.
  63. MR JUSTICE MOSTYN: You do not oppose the principle.
  64. MR SOUTHEY: No. Can I make two applications? One is for permission to appeal. We would submit that particularly the human rights aspects of the case raise important issues of principle. My Lord commented on two things: first, what you held to be consequences of the Supreme Court's judgment but in my view the Supreme Court order is perhaps more accurate. Of course there is no reason in the Supreme Court's order.
  65. MR JUSTICE MOSTYN: No. This could all have been avoided if they had done that. If you make it all the way up there you can tell them from me.
  66. MR SOUTHEY: The second point that I make about this is that ultimately - although you said there is no case effectively that holds the UK's system of costs incompatible with the Convention - one has Scordino which in many respects is the only authority either way on it which says, to use the language of Scordino if I remember correctly, it is a paradox for the State to say with one hand that it needs to compensate you for putting you in the position that you have been denied your human rights and with the other hand take away that. That is the only case.
  67. MR JUSTICE MOSTYN: That was not really a costs decision though. It seemed as if the Italians were charging him to register his judgment which sounds to me "to no man shall I sell justice".
  68. MR SOUTHEY: I still say that the basic point is it was saying if there has been delay you have to compensate someone. That is obviously - - - - -
  69. MR JUSTICE MOSTYN: I am not going to give you leave to appeal because I really believe the Court of Appeal should dine la carte and not table d'hote.
  70. MR SOUTHEY: Okay.
  71. MR JUSTICE MOSTYN: The question should be decided by them. I, for my part, cannot see that either of the criteria within that part of the CPR is a factor (?). They do not pay any attention to what we say anyway. So, I am not going to give you leave. Do you want an extension of time?
  72. MR SOUTHEY: Yes.
  73. MR JUSTICE MOSTYN: What is the normal time?
  74. MR SOUTHEY: Twenty-one days normally. I was going to ask for thirty-five days.
  75. MR JUSTICE MOSTYN: That sounds reasonable - because of Easter apart from anything else.
  76. MR SOUTHEY: Yes.
  77. MR JUSTICE MOSTYN: Thirty-five days is fine. Also it may take some time for the judgment to come back so may be I should make it a bit longer.
  78. MR SOUTHEY: Yes.
  79. MR JUSTICE MOSTYN: If I have not corrected the judgment before I go away you are not going to be able to formulate anything.
  80. MR SOUTHEY: It is also whether or not the Legal Aid Agency will consider an application.
  81. MR JUSTICE MOSTYN: Without a judgment? I shall say eight weeks.
  82. MR SOUTHEY: Yes, eight weeks.
  83. MR JUSTICE MOSTYN: Eight weeks - fifty-six days.


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