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Cite as: [2002] EWHC 1915 (Admin)

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Neutral Citation Number: [2002] EWHC 1915 (Admin)
Case No: CO/4463/2001


Royal Courts of Justice
London, WC2A 2LL
17th July 2002

B e f o r e :


- and -




(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)


Richard Drabble QC & Daniel Kolinsky appeared on behalf of the Claimant
Jason Coppel appeared on behalf of the Defendant



Crown Copyright ©

    1. This is a application by the claimant, Kevin Barber, for Judicial Review of the decision of the Defendant, the Secretary of State for Work and Pensions, dated 19th December 2001, rejecting the Claimant's request that child benefit in respect of his younger son Gareth should be shared between himself and his former wife, Karen Barber. Their marriage has foundered, and they have two sons.

    2. The parents have agreed to a shared care arrangement which has been approved by the court, whereby Gareth spends an equal amount of time with each of them. Unfortunately Mrs Barber will not agree to a sharing of the chiel benefit and the Secretary of State refuses to make any direction to that effect.

    3. Initially the child benefit for Gareth was paid to the Claimant with his then wife's consent but on their separation, it was paid to Mrs Barber, again by consent. The claimant contends and concedes that they are each entitled to receive child benefit in respect of Gaeth, but complains that Mrs Barber continues to receive the entirety of the benefit while he receives none of it.

    4. The sum of money involved is not large - the entire benefit for a second child amounts to £11.55 a week. However, it is contended that it is not only that sum of money which is at issue. The Claimant's case is that the receipt of child benefit is a gateway to many additional benefits and allowances.

    5. By the Amended Judicial Review claim form, review is sought of the decision of the Secretary of State dated 19th December 2001 to decline to exercise his powers under Regulation 34 of the Social Security (Claims and Payments) Regulations 1987 and/or his discretion under paragraph 5 of Schedule 10 of the Social Security Contibutions and Benefits Act 1992 to split the child benefit between Gareth's parents.

    6. Having heard careful and helpful submissions from Mr Drabble QC behalf of the Claimant and Mr Coppel on behalf of the Defendants, I am satisfied and Mr Drabble now concedes, that the decision under review was based only on Regulation 34 and that the case should be decided on that basis alone.

    7. Nevertheless it will be desirable and necessary to set out the whole statutory scheme:

    Section 141 of the Social Security Contributions and Benefits Act 1992 ("the Act") provides that:


    "A person who is responsible for one or more children in any week shall be entitled, subject to the provisions of this Part of the Act, to a benefit (to be known as "child benefit") for that week in respect of the child or each of the children for whom he is responsible”.


    By Section 143(1) of the Act a person recall be treated as responsible for a child in any week if:


    a) "he has the child living with him in that week",

    b) “he is contributing to the cost of providing for the child at a weekly rate that is not less than the weekly rate of child benefit payable in respect of the child for that week".

    It is common ground that both the Claimant and Mrs Karen Barber are a "person responsible" for Gareth within the meaning of s.143 of the Act.


    Section 144(3) of the Act provides that:

    "Where, apart from this subsection, two or more persons would be entitled to child benefit in respect of the same child for the same week, one of them only shall be entitled; and the question which of them is entitled shall be determined in accordance with Schedule 10 of the Act".

    This is the basic rule that only one person is entitled to child benefit for a child in any week.
    Schedule 10 of the Act sets out the order of priority between persons responsible in the following terms (so far as material):

    a. By paragraph 1, a person already in receipt of child upon takes priority over a person claiming for a three-week period.

    b. Paragraph 3 provides that as between a husband and wife residing together the wife shall be entitled. It is submitted that here is an overt weighting in favour of women (mothers)

    c. Paragraph 5 provides:

    “As between persons not falling within paragraphs 1 to 4 above such one of them shall be entitled as they may jointly elect or, in default of election, as the Secretary of State may in his discretion determine”.

    Section 5(1) of the Social Security Administration Act 1992 states:

    “Regulations may provide…

    (p) for the circumstances and manner in which payments of such a benefit may be made to another person on behalf of the beneficiary for any purpose, which may be to discharge in whole or in part, an obligation of the beneficiary of any other person”.
    Regulation 34 provides (so far as is material):
    “the Secretary of State may direct that benefit shall be paid, wholly or in part, to another natural person on the beneficiary’s behalf if such a direction as to payment appears to the Secretary of State to be necessary for protecting the interests of the beneficiary, or any child or dependent in respect of whom benefit is payable”.
    It is to be noted first that this regulation provides a discretionary power to apportion the benefit. Second that the beneficiary in this case is Mrs Barber and thirdly, that only if it appears to the Secretary of State to be necessary for protecting the interests of the beneficiary or any child, can the power be exercised.

    8. Mr Drabble submits that the United Kingdom statutory scheme as construed and administered by the Secretary of State adopts an all or nothing approach. Only one parent receives child benefit so as to be regarded as the parent with care for the purposes of the Child Support Act 1991 and, if otherwise entitled, to receive child additions to means tested welfare benefits such as income support and Jobseeker’s Allowanct, and Home Responsibility Protection (“HRP”) credits. The parent who does not receive child benefit is regarded as the absent parent under the Child Support Act 1991 and does not become eligible for HRP or the other additions to benefit to which I have referred if he should fall ill or become unemployed.

    9. It is submitted that in the Claimant’s case, this results in a highly disparate treatment of individuals who are in other respects in identical situations.

    10. The Defendant recognises that child benefit is the passport to other benefit entitlements as appears from paragraph 40 of the first statement of Mr Sprawson, head of the Child Benefit Policy Section of the relevant department. However, they contend that these are hypothetical issues which do not fall to be considered in these proceedings since the Claimant is in full employment, does not receive any of the benefits referred to and there is no immediate likelihood of his making a claim for them.


    11. I disagree with the Defendant’s approach on this particular issue. I take the view that the potential effect of denying child benefit to the Claimant and of categorising him as the absent parent is of considerable importance to him and is a matter to which I should have regard. It is clear from paragraph 76 of Mr Sprawson’s statement that the receipt of child benefits is regarded by the Defendant as a statutory criterion for identifying the absent parent and thus for eligibility or not of what I have described as the raft of welfare benefits.

    12. The remedy sought in these proceedings is first, an order to quash the Defendant's decision and second, an order requiring the Secretary of State to reconsider the exercise of his discretion under Regulation 34 (the reference to paragraphs 5 of schedule 10 is now irrelevant). There are obvious difficulties in the Claimant's way in obtaining these orders.


    13. The purpose of Regulation 34 is to enable the Secretary of State to ensure that benefit is paid to someone other than the parent where it appears necessary to do so in order to protect the interests of the parent or the child. It is designed to cover situations where the parent is unwilling or unable to apply the benefit in the interests of the child or squanders it for some other purpose and enables the Secretary of State to pass the benefit, for example to a landlord in respect of rent or to a lender to discharge a hire purchase commitment.

    14. Mr Coppel rightly describes Regulation 34 as providing an exceptional measure designed to meet certain exigencies and which does not affect entitlement to child benefit.

    15. I agree with the observations of Collins J. in Chester v Secretary of State for Social Security (unreported 7th December 2001) where at paragraph 10 he says:

    “That provision (i.e. Regulation 34) is applicable in the case where, for example, the beneficiary (that is to say the person who is entitled to receive the child benefit) disappears or is otherwise unable (or perhaps even unwilling) to use the benefit for the proper purpose”.

    16. The present case does not fall within that category. There is no suggestion that Mrs Barber is not applying the benefit for the proper purpose. So it would be impossible for the Secretary of State to conclude that it is necessary for protecting the interests of the beneficiary or the child, that he should direct that the benefit should be paid other that to the beneficiary, i.e. Mrs Barber.

    17. However Mr Drabble seeks to overcome that difficulty by invoking the provisions of the human rights legislation.

    18. He submits that the provision of child benefit and the other welfare benefits are all within the ambit of Article 8 of the European Convention on Human Rights (the right to respect for private and family life). He does not allege an actual breach of that article but he nevertheless submits that the provision of those benefits is the subject of the prohibition of discrimination within Article 14.

    “The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status”.

    19. Mr Drabble submits that there is a breach of Article 14, either because the Claimant is being discriminated against directly, not by reference to his sex, but to his status as the Claimant not currently in receipt of child benefit, or indirectly on the grounds of his sex since it is inherently more likely that men will find themselves in that situation. He submits that there is no need to search for personal characteristics beyond that and that this discrimination is not objectively justified.

    20. The argument then advanced by Mr Drabble is that the apparent breach of Article 14 can be avoided if Regulation 34 is construed pursuant to Section 3 of the Human Rights Act 1998 so as to authorise the payment of part of the child benefit to the Claimant and the other provisions governing payments of benefits were construed so as to provide for entitlement on receipt of sums under Regulation 34 or remove status as an absent parent.

    21. Mr Drabble describes this as a ‘relatively small piece of strained construction’ whereby the regulation could be invoked to allow split payments of child benefit which would ensure that the interests of Gareth would be better protected. He relies on another passage in the judgment of Collins J. in Chester where at paragraph 18 he said:

    “Equally it is possible, although I reach no final view on this... that there may be a possibility of using Regulation 34 so that the Claimant receives some extra amount and that that amount does not effect her entitlement to the allowances that she already has”.

    22. If neither of these is open, then Mr Drabble seeks a declaration of incompatibility.

    23. I agree with Mr Drabble’s use of the word ‘strained’ in describing the construction Regulation 34 which he seeks. I do not see how that regulation could possibly be interpreted as empowering the Secretary of State to split or rotate child benefit in the manner sought in this application. Such an interpretation might possibly be applied to paragraph 5 of Schedule 10 but could not in my view apply to Regulation 34.

    24. That brings me to the convention argument. There are a number of matters to be considered.

    25. It being conceded by the Defendant that his decision fell within the scope of the Claimant’s Article 8 rights, the next and fundamental question is whether the Defendant has discriminated against the Claimant under Article 14, either directly by reference to his status or indirectly on account of his sex.

    26. I remind myself of the provisions of Section 3, sub-section 1 of the Human Rights Act:

    "So far as it is possible to do so primary legislation and secondary legislation must be read and given effect in a way which is compatible with the Convention rights".

    27. I was referred by Mr Drabble to the decision of the European Court of Human Rights in Petrovic v Austria 4 Butterworths HRC 232, a case concerned with the father's claim for a parental leave allowance. I quote from paragraphs 22, 26, 27, 28, 29 and 30 of the judgment:

    "22. As the court has consistently held, art 14 complements the other substantive provisions of the convention and the protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms safeguarded by those provisions. Although the application of art 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Schmidt v Germany (1994) 18 EHRR 513 at 526 (para 22) and Van Raalte v Netherlands 24 EHRR 503 at 516-517 (para 33)).
    26. In this connection the court, like the Commission, considers that the refusal to grant Mr Petrovic a parental-leave allowance cannot amount to a failure to respect family life, since art 8 does not impose any positive obligation on states to provide the financial assistance in question.
    27. Nonetheless, this allowance paid by the state is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.
    28. The court has said on many occasions that art 14 comes into play whenever 'the subject-matter of the disadvantage...constitutes one of the modalities of the exercise of a right guaranteed'. (See National Union of Belgian Police v Belgium (1975) 1 EHRR 578 at 592-593 (para 45)) or the measures complained of are 'linked to the exercise of a right guaranteed' (see Schmidt v Sweden 1 EHRR 632 at 645 (para 39)).
    29. By granting parental-leave allowance states are able to demonstrate their respect for family life within the meaning of art 8 of the convention; the allowance therefore comes within the scope of that provision. It follows that art 14 - taken together with art 8 - is applicable.
    30. Under the court's case law, a difference in treatment is discriminatory for the purposes of art 14 if it 'has no objective and reasonable justification, that is if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the sum sought to be realised' (see, among other authorities, Schmidt v Germany (1994) 18 EHRR 513 at 527 (para 24) and Van Raalte v Netherlands 24 EHRR 503 at 518-519 (para 39)).

    28. The Defendants contend that there has been no discrimination falling within Article 14 because no personal characteristic has been identified upon which discrimination could be said to be based. They submit that the cases show that this is a requirement. Mr Drabble submits to the contrary and that the personal characteristics test was expressly rejected by the Court of Appeal in Michalak v London Borough of Wandsworth [2002] EWCA Civ.271, a judgment delivered on 6th March 2002. Mr Drabble relies upon the judgment of Brooke L.J. and in particular paragraph 32:

    "I reject the argument advanced by Mr John Howell QC who appeared for the Secretary of State, that it is necessary to find some personal characteristic in common with the comparators relied upon".

    29. However, there is another decision of the Court of Appeal which appears to be to the contrary effect and which was not considered by the Court in Michalak. I refer to Southwark LBC v St Brice (2002) 1 WLR 1537. I cite from the judgment of Lord Justice Kennedy at page 1545, paras 23 and 24:

    "23. As Mr Ivimy pointed out, in order to establish an infringement of article 14 the tenant must show that (1) he has been treated less favourably (2) in the exercise of his Convention rights (3) as compared with others who are in an analogous position (4) on grounds which are capable of founding a complaint of discrimination under article 14 and (5) for reasons which are not objectively justified. In fact the tenant was not treated less favourably than a defendant in the High Court. He had an equal opportunity to require the court to hear him before eviction. The alleged discrimination did occur within the field of Convention rights (articles 6 and 8), but the tenants’ position was not really analogous to the position of the defendant in the High Court because High Court procedure is significantly different, as recognised by this court in the Jephson Homes case [2001] 2 All ER 901 and by the European Commission of Human Rights in DP v United Kingdom (1986) 51 DR 195, 213 where it was accepted that county court procedures "are designed with an eye to greater simplicity than those in the High Court, with a resultant reduction in costs and complexity".

    24. Even more significantly in order to establish a claim under article 14 an individual must show that he has been discriminated against on the basis of "a personal characteristic ('status') by which persons or groups of persons are distinguishable from each other": Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 733, para 56. The landlord's choice of forum for its possession action was not based upon any personal characteristic of the tenant capable of founding a claim for discrimination under article 14.

    30. Mr Drabble comments that certain decisions of the European Court of Human Rights upon which he relies were not cited to the court in St Brice. He refers to the 1996 decision in Stubbins v UK 23 EHRR 213 and the 1997 case of National and Provisional Building Society & Ors. v UK 25 EHRR 127 and to the fact that in neither of those cases did the court say that personal characteristics should be demonstrated.

    31. Nevertheless there are other decisions which in my opinion amply support the view expressed by Kennedy L.J. in St Brice.

    32. The first of these is the decision of the European Court of Human Rights in Magee v UK 2002, 31 EHRR 35 where the court referred on two occasions to personal characteristics as a ground for discrimination. In addition there are two decisions of the English courts to the same effect upon which I place strong reliance.

    33. In The Queen (On the application of the personal representatives of Beeson) v Dorset County Council (2002) HRLR 368, Richards J. having referred to Magee and to St Brice, also referred to the question of personal characteristics, though in that case the discrimination arose out of objective differences between various statutory regimes.

    34. In Hooper v Secretary of State for Work and Pensions (2002) EWHC 191 (Admin), Moses J. said that he felt compelled to follow the general principle enunciated by the Court of Appeal:

    “In those circumstances, the absence of any personal characteristic found in the claim for discrimination under Article 14 affords an additional ground for rejecting the contention that the two groups of litigant widowers were in an analogous situation for the purposes of Article 14”.

    Therefore if and in so far as the cases of Michalak and St Brice are in conflict, I unhesitatingly prefer the views of and accept the formulation proposed by Kennedy L.J. in St Brice. In a case decided very recently by Stanley Burnton J. the judge having been referred to Michalak still appeared to believe that there was a requirement to show that the discrimination was based on some aspect of personal status (see Carson v Secretary of State for Work and Pensions (2002) EWHC 978 (Admin)).

    35. The direct discrimination relied upon is based on the fact that Mrs Barber is the parent already in receipt of child benefit whereas the claimant as the parent who does not receive any child benefit, has to make a competing claim last, that is when the other parent is already in receipt of it. It is submitted that given the position that both parents are equal carers of Gareth, the Claimant is treated less favourably than Mrs Barber who is in an analogous and relatively similar position to him. Indeed their positions in relation to Gareth are in other respects, identical.

    36. The indirect discrimination on the ground of sex is said to arise out of the overt weighting in favour of women in paragraph 3 of schedule 10 to which I earlier referred and also paragraph 4(2). It is contended that the statutory scheme itself treats men less favourable than women on grounds of sex.

    37. The complaint is that because of the Secretary of State's non-interventionist approach to the exercise of any powers he may have and given a shared care situation, it must follow as a matter of logic that the adoption of such a restrictive approach in preserving the status quo favours the parent who is already in receipt of child benefit.

    38. Dealing first with the suggestion that there has been direct discrimination by reference to status, I accept Mr Coppel's argument that the Defendants’ approach under Regulation 34 does not amount to less favourable treatment of the Claimant. I agree that it applies across the board and regardless of the status of the person seeking a direction. The Claimant's request for a direction under Regulation 34 was refused because there was no evidence of misuse by Mrs Barber of the child benefit paid to her in respect of Gareth. In my judgment the Claimant was not treated less favourably than anybody else who had requested the direction under Regulation 34. The fact that he was the parent not in receipt of child benefit, does not in my view amount to a personal characteristic or represent a status which formed the basis of any discrimination.

    39. As to the second claim, that of indirect discrimination on the ground of sex, it is to be observed that this does not feature in the amended claim form. It saw the light of day for the first time in the Claimant's skeleton argument dated 26th June 2002. Nevertheless I have allowed Mr Drabble to advance and develop argument in support of this part of his case. However, I very much doubt whether the argument of indirect as opposed to direct discrimination is available to him under Article 14. Mr Coppel submits that there is no example in the European or domestic courts of a successful claim for indirect discrimination contrary to Article 14 and that if I were to find for the Claimant on this ground, I would be the first judge to do so.

    40. In any event, as Mr Coppel rightly submits, an allegation of indirect discrimination raises complex issues. The field of employment law shows that for such a claim to succeed, it must be supported by proper statistical evidence. In my view I simply do not have that evidence before me and I am not in a position to begin making an assessment of such a claim.

    41. The defendants submit that quite apart from any other consideration, there is objective justification for their refusal to accede to the claimant's request which was to direct that child benefit should be split between the parents. Therefore what the defendants have to justify is the continued payment of child benefit in respect of Gareth to Mrs Barber rather than splitting it.

    42. Having considered the rival submissions, I come to the clear conclusion that the Defendant was amply justified in the decision which he took.

    43. Child benefit is a universal non-means tested benefit claimed by about seven million families for about eleven million children. Though there are that high number of claimants, the payments themselves are relatively small. So the system must be kept simple and the costs of administering it must be kept low. So far these aims have been achieved. I am told that only 1.9% of the total sum involved goes to the cost of administration. If the payment for each child were to be split, the administration of such claims would become complex and expensive. I have no doubt that if split claims were to be allowed, there would be a proliferation of such claims and the corresponding increase in complexity and cost and an increase of payment accounts on an already overburdened computer system.

    44. I find that the present system works well and offers an efficient service at a relatively low cost. A cornerstone of that system is contained in Section 144 of the Act whereby only one person is entitled to child benefit in respect of the same child. In my judgment there is no justification for a change in that system. The Defendant's policy is legitimate and proportionate.

    45. I adopt a similar approach to that of Moses J. in Hooper at paragraphs 106 and 107. I have scrutinised the Defendant's arguments to examine whether they support the conclusion which has been reached. I find that they do. I am also mindful that the court is ill equipped to deal with questions of social and economic policy.

    46. In my view the Defendant reached a conclusion which was reasonable and well within the range of decisions open to him. Indeed it was the only conclusion to which he could properly come.

    47. Thus I have examined the Claimant's contentions in full. If and insofar as the Defendant relied on issue estoppel, I reject that argument. I take the view that the question of issue of estoppel does not and cannot arise in judicial review proceedings.

    48. For these reasons, therefore, I refuse the application.

    - - - - - - - - - - - - - -

    SIR RICHARD TUCKER: Miss Kilroy, you now appear for the claimant?

    MISS KILROY: That is right, my Lord.

    SIR RICHARD TUCKER: Mr Coppel for the defendants?

    MR COPPEL: Yes, my Lord.

    SIR RICHARD TUCKER: I have handed down copies of my judgment. You have both seen them. I refuse the application on the grounds set out in the written judgment. Mr Coppel has very kindly let me have a list of typographical errors. Have you seen those, Miss Kilroy?

    MISS KILROY: My Lord, I have seen it. I have not gone through it in detail, but I am happy to accept that those are --

    SIR RICHARD TUCKER: The only one that might be controversial and I draw your attention to is that contained in paragraph 22 of the judgment, which Mr Coppel says should be omitted in the light of the claimant's concession that no issue arose under that paragraph. I think he was right. Do you have any objection to that omission?

    MISS KILROY: No, my Lord.

    SIR RICHARD TUCKER: Very good. Thank you. So that paragraph will be deleted and the subsequent paragraphs renumbered.

    Now, the other typographical errors that I asked to be corrected, I checked them all, and Mr Coppel, if I may say so, is right. What I propose to do is to hand to the shorthand writer a list of those corrections so that they can be made. Will you see that those are made in the final judgment, please.

    Now, you have an application you wish to make, Miss Kilroy?

    MISS KILROY: Yes, my Lord, I do. You have seen the grounds of appeal, the written submissions that were handed up to you?


    MISS KILROY: My Lord, I simply seek to adopt those written submissions, and I would emphasise in respect of paragraph 3 of those submissions that your judgment does acknowledge that there are two conflicting Court of Appeal authorities on this matter.

    SIR RICHARD TUCKER: I say it appears that they are in conflict. One of Mr Coppel's arguments is that they are not in fact, but you are quite right in submitting there is or appears to be conflict between the two positions, Michalak and St Brice.

    MISS KILROY: Precisely, my Lord. In those circumstances, given the significance that was attached to this issue of personal characteristic, in my submission it would be appropriate for this case to go to the Court of Appeal so that the Court of Appeal could decide more finally what the test was when applying Article 14.

    Paragraph 4, my Lord, relates to the justification, and in your judgment you equally acknowledged that there are knock-on effects from the award of child benefit in this case, and in those circumstances the administrative simplicity we submit or I submit is not sufficient justification under Article 14.

    So, my Lord, for those reasons I would ask you to grant leave to appeal.

    SIR RICHARD TUCKER: What do you say, Mr Coppel?

    MR COPPEL: My Lord, we oppose the application for leave to appeal. On the question of the prospects of success of any appeal to the Court of Appeal, there are two points. The first point is that my Lord has found in paragraph 39 of the judgment that in relation to regulation 34, that there was no less favourable treatment of the claimant because the defendant's approach to regulation 34 applies across the board to all persons. That, in my submission, my Lord, is plainly correct and is a finding which the claimant will simply be unable to get around whatever the interesting issues which may arise at other stages of the arguments. If they fail on the less favourable treatment point, then that is the end of the case.

    The second point as to prospects of success, my Lord, is that my Lord has rightly recognised the difficulties which stand in the way of a claimant where the defendant has taken a decision in an area of social policy which affects the allocation of resources, and the Court of Appeal will be as reluctant as my Lord was to interfere with the decision taken.

    On the question of wider public importance of the case, my Lord, firstly, the possible conflict between the St Brice and the Michalak cases, at the end of October of this year, my Lord, the case of Beeson, which is before my Lord at -- the decision of Richards J was before my Lord at the hearing, that case, in which Mr Drabble appears for the claimant and I appear for the defendant, is before the Court of Appeal and the Court of Appeal will itself have to address in that case squarely the conflict or otherwise between the Michalak and St Brice cases. So there is no reason for this particular case to proceed to the Court of Appeal in order that that may be resolved.

    And the second point on the wider public interest, my Lord, is that as Mr Drabble explained in his submissions, there are other cases currently going through the court which raise similar issues, the Hokenjos case and the Chester case, which I understand from those instructing me has resurfaced and will be coming before this court in due course, where precisely the same issues or similar issues will be raised. So there is, my Lord, again no reason in the wider public interest why this case should proceed to the Court of Appeal.

    My Lord, those are my submissions.

    SIR RICHARD TUCKER: Yes, thank you very much. Anything more you wish to say, Miss Kilroy?

    MISS KILROY: My Lord, only that the fact that there are other cases going through the courts at this time which may or may not relate to these issues does not, in my submission, mean that this case should not go to the Court of Appeal when it is not clear what the decisions in those other cases may decide.

    SIR RICHARD TUCKER: Yes. Thank you very much.

    Having considered the submissions of Miss Kilroy, who now appears for the claimant, and for Mr Coppel, who has appeared throughout for the defendant, I take the view that there is no realistic prospect of success in an appeal. The law seems to me to be clear. The objective justification seems to be equally clear. On the facts of this case, in my view there are no prospects sufficient to justify the grant of leave to appeal, and I accordingly refuse it.

    Are there any ancillary applications?

    MR COPPEL: No, my Lord.

    MISS KILROY: My Lord, I simply have one further issue to raise, which is that the claimant would seek to lodge an appellant's notice at the Court of Appeal, and there is a provision under 52(4) that the lower court may direct a notice can be filed within a longer period than 14 days.

    SIR RICHARD TUCKER: Why do you need a longer period than 14 days?

    MISS KILROY: The reason for that is simply because the holidays are coming up, and in addition to that --

    SIR RICHARD TUCKER: They are not coming up within the next 14 days.

    MISS KILROY: Well, there is a need --

    SIR RICHARD TUCKER: The term ends on the 31st, does it not? We are now on the 17th, so you have a fortnight.

    MISS KILROY: My Lord, I think that --

    SIR RICHARD TUCKER: And the courts do not shut down now, as they used to do in the old days, when the long vacation starts.

    MISS KILROY: I think, my Lord, the point is that there is considerable pressure on time at this period prior to the holidays, and the other point is that there is a need in this particular case to report back to the Legal Services Commission and get authorisation to continue with the claim and with the appeal, and so it would be of great assistance to the claimant if more time was permitted.

    SIR RICHARD TUCKER: What time are you asking for?

    MISS KILROY: 21 days, my Lord.

    SIR RICHARD TUCKER: I do not suppose you have anything to say about that, Mr Coppel?

    MR COPPEL: No, my Lord.

    SIR RICHARD TUCKER: That is a modest application, Miss Kilroy. Very well, I grant that, 21 days.

    MISS KILROY: My Lord, there is one further matter, which is that the claimant would need a detailed assessment.

    SIR RICHARD TUCKER: I was waiting for an application of that sort. You are publicly funded, are you?

    MISS KILROY: Yes, we are.

    SIR RICHARD TUCKER: Very well, an order for detailed assessment of the claimant's costs. Thank you all very much for your help.

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