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Cite as: [2003] EWHC 3115 (Admin)

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Neutral Citation Number: [2003] EWHC 3115 (Admin)
CO/505/2003

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

Royal Courts of Justice
Strand
London WC2
5 December 2003

B e f o r e :

MR JUSTICE OUSELEY
____________________

THE QUEEN ON THE APPLICATION OF SOUTH WALES POLICE AUTHORITY (CLAIMANT)
-v-
THE MEDICAL REFEREE (DR DAVID ANTON) (DEFENDANT)
PHILIP CROCKER (INTERESTED PARTY)

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

MR TIMOTHY PITT-PAYNE (instructed by Force Solicitor, South Wales Police Headquarters, Cowbridge Road, Bridgend F31 3SU) appeared on behalf of the CLAIMANT
THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
MISS HENRIETTA HILL appeared on behalf of the INTERESTED PARTY

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE OUSELEY: The claimant, the South Wales Police Authority, seeks to quash a decision of the defendant Medical Referee that Mr Crocker, the interested party, and a police officer who was retired on 3rd March 2002, had lost all earning capacity as a result of an injury received in the execution of his duty.
  2. The Police Authority contended that only 40 per cent of Mr Crocker's earning capacity had been lost because of an injury received in the execution of his duty, which the Selected Medical Practitioner accepted. Mr Crocker appealed against that decision to Dr Anton, the defendant Medical Referee. The Police Authority claimed that on the medical evidence accepted by the Medical Referee, Mr Crocker had some, or some potential, earning capacity, and that the Medical Referee's decision had been wrongly effected by his assessment of how employers would react to the officer's medical history, a factor irrelevant to the assessment of earning capacity. The Police Authority also claimed that the Medical Referee had failed to apportion Mr Crocker's loss of earning capacity between the injury sustained in the execution of his duty (stress at work) and an earlier injury which had not been sustained in the execution of his duty (a chemical imbalance in the brain). It was this latter injury, in combination with his stress at work, which, it was said, had led to Mr Crocker's schizoaffective psychosis.
  3. Although it is the Medical Referee's decision which is challenged, he has not taken any part in the proceedings, perfectly properly and understandably, as the issues are legal ones and do not raise a challenge to his expertise, integrity or medical judgment.
  4. THE LEGISLATION

    The relevant legislation is the Police Pensions Regulations 1987. Regulation B4(1) entitles a police officer who retires as a result of being "permanently disabled as a result of an injury received without his own default in the execution of his duty" to a gratuity and to an injury pension.

  5. Schedule B Part V, paragraphs 1 and 2, provide for the calculations of those two components of the injury award, as it is called. One key element in each is the degree of disablement. The degrees of disablement are set out in four bands: slight, minor, major and very severe, representing increasing percentages of disablement. So, slight is 25 per cent or less; minor is 26 to 50 per cent; major is 51 to 75 per cent and very severe over 75 per cent. These feed into the calculations of pension and gratuity.
  6. The terms used in the Regulations are defined as follows. By regulation A11.1:
  7. "... an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable..."

    "Injury" is given a very broad definition. In Schedule A, the glossary of expressions, it says:

    "'Injury' includes any injury or disease, whether of body or of mind..."

    Regulation A12 deals with "permanently disabled". Regulation A12(1) deals with the time when the assessment is made. Some discussion arose as to how far forward it was permissible or necessary to look under Regulation A12(1). It says:

    "A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent."

    Regulation K2 was of importance in relation to those submissions. K2(1) provides for review in these terms:

    "Subject as hereinafter provided, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner's disablement has altered; and if after such consideration the police authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly."

    Regulation A12(2) defines "disablement" as follows:

    "Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living."

    Regulation A12(3) is important, as is A13:

    "Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:
    Provided that a person shall be deemed to be
    Totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital. ...
    A13. For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received."

    I need to refer also to the provisions in the Regulations for the resolution of disputes about the calculations of awards. Although Regulation H1(1) requires the question of entitlement to an award and, if so how much, to be determined in the first instance by the Police Authority, H1(2) provides for the decision on four specific questions to be referred to a qualified medical practitioner, known as the "Selected Medical Practitioner". The questions are:

    "(a) whether the person concerned is disabled;
    (b) whether the disablement is likely to be permanent;
    and, if they are further considering whether to grant an injury pension, shall so refer the following questions:
    (c) whether the disablement is the result of an injury received in the execution of duty, and,
    (d) the degree of the person's disablement;
    and, if they are considering whether to revise an injury pension, shall so refer question (d) above."
  8. H2(2) provides for an appeal to the Medical Referee against the decision of the Selected Medical Practitioner as set out in his certificate required under H1(4). The Medical Referee is to express any disagreement with the Selected Medical Practitioner's certificate in the form of a certificate also. It is that certificate and the underlying reasoning for it which is under challenge here.
  9. There is a helpful analysis of the interaction between Regulations A12 and A13 in the judgment of Stanley Burnton J in R (South Wales Police Authority) v Morgan and Lewis-Davidson [2003] EWHC 2274 (Admin) (8th October 2003 unreported), which both parties adopted, although I was not sure that they were in full agreement as to its purport.
  10. The case concerned a police officer suffering from permanently disabling depression which had three causes, only one of which, over work, was (what for convenience was termed) a "duty injury". Stanley Burnton J concluded that the Medical Referee had wrongly failed to distinguish between a duty injury and non-duty injuries in his assessment of the degree of disablement attributable to the duty injury. He drew the distinction between, on the one hand, whether under A13 a duty injury caused or substantially contributed to permanent disablement -- which was the causal, or entitlement question arising under H2(2)(c) -- and, on the other hand, the degree of disablement which was relevant to the calculation of the quantum of gratuity and pension to be paid to those entitled to an injury award, which was the question under H2(2)(d).
  11. The relevant degree of disablement for the latter question was not determined by the fact that the duty injury had been found to have caused, or substantially contributed to, permanent disablement at the entitlement stage.
  12. He said:
  13. "20. Regulation A13 requires disablement to be deemed to be the result of an injury if that injury substantially contributed to the disablement. It follows that provided Mr Lewis-Davidson's depression caused by overwork was a substantial cause of his disablement, his disablement was the result of an injury received in the execution of his duty. It is understandable, therefore, that the Police Authority conceded that the answer to the question posed in regulation H1(2)(c) was affirmative. However, this case concerns not the question required to be answered by regulation H1(2)(c), but that posed by regulation H1(2)(d).
    21. One of the questions that arises in the present case is whether Mr Lewis-Davidson suffered one injury or more than one injuries as a result of the matters to which Dr Morgan referred, i.e. each of causes (i), (ii) and (iii). On his classification of these causes, it was unnecessary for Dr Morgan to consider this question, and I do not know what his answer would have been if he had correctly treated only the first of those causes as giving rise to an injury received in the execution of duty. If there are separate injuries, of which one is a duty injury and one is not, the degree of disablement falls to be assessed in relation only by reference to the affect of the former on the earning capacity of the person in question. Regulation A12(3) refers to the result of the duty injury only. Regulation A13 does not require a different result: it applies to the question whether disablement is the result of an injury, not the degree to which earning capacity has been affected as a result of a duty injury."
  14. The need for apportionment where disablement results from a duty and from a non-duty injury is also referred to in the August 2002 Home Office Guidance on Appeals under these Regulations. Annex A, paragraph 4, says:
  15. "When a person is disabled partly on account of a medical condition occasioned by an injury on duty and partly by another medical condition which has not been occasioned by a relevant injury, the degree of disablement must be assessed on the basis of an apportionment of the disablement to take account only of the condition occasioned by the relevant injury."
  16. The guidance offers brief assistance in relation to causation in the context of entitlement. It recognises that some cases may be cited, but it says:
  17. "... in brief we suggest the following should be noted:
    . an injury does not have to be received [through] a single, significant incident;
    . causation includes the 'straw that broke the camel's back' provided the condition would not have become permanently disabling but for the injury.
    . substantial means more than marginal but does not have to mean predominant."
  18. Stanley Burnton J in Morgan and Lewis-Davidson then said:
  19. "24. Whether there has been one injury or more than one is not a purely legal question; it is primarily a medical question, which, when the issue arises, must be addressed by the Selected Medical Practitioner or the medical referee. Dr Morgan did not address this possibility: on the basis of his (erroneous) view of the law, it was unnecessary for him to do so. I do not know (although I can guess) what his opinion would have been on this question.
    25. However, it does not follow that, where the disability is the result of a single injury, received partly in the execution of duty and partly not, the same applies. The Home Office guidance does not refer to that situation. The Regulations distinguish between injury and disability. It does not follow from the proposition that only the degree of disability resulting from the relevant injury is to be assessed that a similar approach is required where there is only a single injury, but it has multiple causes, or it has been exacerbated by non-duty matters, as where a disabling depression is the result of a predisposition to depressive illness or concurrent causes of stress (c.f. Dr Choudhary's report and his letter of 21 December 2001). In such a case, there is no real distinction between injury (depression) and disablement, and in accordance with normal principles of causation it is sufficient if the duty cause is a substantial cause of the injury."

    There was some discussion about the application of paragraph 25 to the facts of that and of this case.

    THE FACTS

    It is plain from the limited material available to the court that there was an understanding common to the medical professionals involved that, for whatever reason, Mr Crocker had a chemical imbalance in the brain. It was also common ground that this condition could fall within the considerable breadth of the definition of "injury" in the 1987 Regulations as a disease of the mind. It is clear that there was stress at work which with that pre-existing condition, which may or may not itself have been work related to some degree, led to schizoaffective psychosis. It is agreed that this stress was an injury which was a duty injury, which caused or substantially contributed to Mr Crocker's permanent disablement. There is no dispute but that he is entitled to a gratuity and pension; that is an injury award.

  20. Dr Davies, as the Selected Medical Practitioner, answered the relevant questions from H1(2), in his certificate of 10th January 2002, that Mr Crocker was suffering from "psychotic illness", and was disabled from performing the ordinary duties of a member of the police force. The disablement was likely to be permanent. He said that the matter should be considered in two years' time. He said that the condition was the result of an injury received in the execution of duty and that the earning capacity had been affected at 40 per cent.
  21. When the Secretary of State for the Home Department appointed Dr Anton, a consultant physician in occupational medicine, to decide the appeal, the Department wrote to the Police Authority on 12th March 2002 saying:
  22. "The issue under dispute giving rise to the appeal is, in our view "To what degree has the appellant's earning capacity been affected by the relevant injury (Psychotic illness), received in the execution of duty?". If you disagree with this issue please contact this office immediately. Subject to that, the appointed medical referee will be specifically asked to determine this issue. I should also mention that under the Regulations a medical referee is not confined to considering issues in dispute but may in reaching a decision disagree with any part of the certificate of the selected medical practitioner."
  23. On 1st July 2002 the Secretary of State again wrote to the Police Authority, saying that the issue was:
  24. "To what degree has the appellant's earning capacity been impaired by the relevant injury 'Psychotic illness' received in the execution of duty?
    We have stressed to the referee that the term 'degree of disablement' relates to loss of earning capacity, but you may think it prudent to ensure that your evidence to the referee includes a detailed explanation of how the % degree of disablement was calculated."
  25. The Police Authority's submissions to the Medical Referee included the evidence of Dr Davies, who, in a letter of 9th September 2002, said that Mr Crocker had been diagnosed as suffering with a schizoaffective psychosis in September 1995 and suffered a relapse in July 1997. He continued:
  26. "On providing the medical certificate I accepted that a contributory factor of his illness has been an element of injury on duty. I based that on the informed opinion of the Consultant Psychiatrist, Sandra Johns who, in her report, and I quote 'It has always been felt that in addition to the actual chemical illness, Mr Crocker has, in the past, been pressurised by a variety of reasons, into achieving too much in his career too soon and as far as I am aware I believe that he could have once been described as a high flyer.' I accepted that there was an implication that stress was a contributory factor.
    In considering the degree to which his earning capacity had been affected, I took into account that his illness was not caused through work but that work had been a contributory factor to his illness, and may have exacerbated the psychosis.
    Prior to the diagnosis of a psychotic illness Mr Crocker has been absent from work because of a viral encephalitis. He had been absent for 9 months prior to September 1995.
    When I last saw Mr Crocker in November last year he was well and his illness was well controlled and he regularly attended psychiatric outpatients. My view was that Mr Crocker would be capable of a wide variety of work. He was an intelligent individual with good communicational skills and his experience and educational background would enable him to find a suitable job of a professional standing."
  27. As Miss Hill, who appears for Mr Crocker, pointed out, there is no reference to apportionment although there was a reference to exacerbation of an illness and to stress as a contributory factor. Further Police Authority submissions of 16th October 2002 emphasised the competences and skills acquired by Mr Crocker. The focus of those submissions, as Dr Davies comments too, was on the actual earning capacity of Mr Crocker. It referred to his being able to continue at the same level of occupation by reference to a report of 1999 from his psychiatrist, Dr Johns. It said that he was intelligent, well-motivated and responsible, and had made a good recovery. He would be capable of performing a number of roles, such as a civil servant or local government officer. It then said that he could potentially earn an average salary of around 15,000 which, compared to his salary as a police constable of 28,000, would equate to his earnings capacity being affected by 46.54 per cent. It continued:
  28. "Thereafter, taking into account the work element as a contributory factor to his condition, which Dr Davies assess as approximately 50%, he has assessed this officer's earnings capacity as being affected by 40%."

    After reference to the bandings, the issue of apportionment was raised using much the same language as appears in the passage from the Home Office guidance which I have already quoted.

  29. The Police Authority reference, in its letter of 9th September 2002, to what Dr Johns had said was a reference to her April 1999 report. However, she supplied a much more recent report to Dr Anton, dated 14th October 2002. It was far more pessimistic. It referred to Mr Crocker's five admissions to hospital, to the fact that he had had a relapse whilst working in a protected position which was less stressful, a position in which it was clear that he could not continue. The relapse had been brought about by only a very slight and temporary increase in stress. He could tolerate none at work now. He was not now working. His relapse had affected his capacity. He had lost his excellent powers of concentration and needed considerable rests between activity. He had had relapses while on medication.
  30. Dr Anton in his decision letter of 2nd November 2002 stated that the issue in the appeal was as to:
  31. "... what degree has [Mr Crocker's] earnings capacity been affected by the relevant injury 'Psychotic Illness' received in the execution of duty?"

    He referred to the differences between the evidence of Dr Davies and Dr Johns, saying:

    "Dr Davies does not agree with Dr Johns' current assessment and is of the opinion that since Mr Crocker was working up until the time he retired he is capable of doing similar work in a supportive environment on a full time basis. Set against this is the fact that Mr Crocker is currently signed off sick and with no immediate prospect of being signed fit for work."

    He concluded:

    "My opinion is that Dr Johns' recent report must be taken as the most current, reliable evidence as to Mr Crocker's mental state and fitness for work. Few, if any, new employers would offer Mr Crocker a position, in the immediately foreseeable future, if they were aware of his health record, although Dr Davies disagrees with this observation. I am further of the opinion that Mr Crocker will need to demonstrate, through part time supported work (such as permitted work), that he is stable and capable of re-entering work on a regular part time basis before he has a realistic chance of finding regular work. There will be a period of several years from leaving the Police before a realistic assessment of his earning capacity can be made. In the meantime, despite the operation of the Disability Discrimination Act, Mr Crocker is effectively unemployable.
    My decision therefore, is that Mr Crocker has been wholly disabled by his illness since his retirement in March 2002. There is no immediate prospect of his recovering fitness although the determination of this appeal should aid his mental state. I think that it would be realistic to reassess Mr Crocker's earning capacity in one year from now."
  32. It is quite clear that the Medical Referee was asked to consider the question of apportionment by the Police Authority. Whatever doubt there might have been about the position at an earlier stage, the Medical Referee explicitly states in his decision letter:
  33. "I am asked by Dr Davies to consider the question of apportionment i.e. the degree to which any award should be abated by consideration of the element of work relatedness."

    However, he explained why he did not consider that issue. He said:

    "I agreed to take this point up with the Home Office, and following telephone discussion, I was advised that it was not part of my remit to consider this. This observation from the Home Office is entirely consistent with my original letter of appointment."
  34. There was subsequent correspondence between the Home Office and the Medical Referee about this decision, which in the certificate of 2nd November 2002 differed from the Selected Medical Practitioner only in certifying that the loss of earning capacity, as a result of the injury received in the execution of his duty, was 100 per cent. The Home Office in its letter of 19th November 2002 to Dr Anton did not raise any question over his decision that the question of apportionment was not in his remit. But it queried whether Dr Anton meant to say that disablement was 100 per cent, because that would mean that Mr Crocker had no ability, however small, to earn any income in any employment. It was not, the Home Office pointed out, a question of the degree of medical disablement. It said that the possibility of review, to which Dr Anton had alluded, should not deter him from reaching "a firm determination" now on the issue under appeal. Dr Anton replied on 24th November 2002, in a letter to which Miss Hill attached some weight, saying:
  35. "I see no prospect of his becoming fit for any work in the immediately foreseeable future. He is thus 100% disabled at present.
    It is possible, in the future, that he may become fit for some work. As, when, and if, this happens, he will need to be reassessed. Obviously the Police Authority will make their own judgment as to when to review him."

    THE ISSUES

    The first issue raised by Mr Pitt-Payne for the Police Authority is whether, on the evidence, the Medical Referee was entitled to conclude that the loss of earning capacity was 100 per cent, regardless for the moment of the extent to which the loss was caused, or contributed to, by a non-duty injury. Mr Pitt-Payne rightly accepted that it was a matter for the Medical Referee's judgment as to which of the competing medical views he preferred. But, accepting the Medical Referee's entitlement lawfully to prefer the evidence of Dr Johns, Mr Pitt-Payne submitted that her evidence, and the Medical Referee's own appraisal of it, showed that the loss of earning capacity could not be 100 per cent.

  36. This depends, in my judgment, on an understanding of Dr Johns' evidence and the Medical Referee's conclusions in respect of it. I should point out at the outset that the evidence before the Medical Referee was brief. It was written by doctors for another doctor's benefit, and was not written with eventual legal analysis evidently in mind. Dr Anton's conclusions, likewise, are short, written for people who are, or have access to, expert knowledge, and they are not written as if they are a contract or statute. They should not be read in an unduly legalistic way.
  37. It is clear that the Medical Referee accepted Dr Johns' evidence based on her latest report and rejected Dr Davies more optimistic assessment of Mr Crocker's current capacity for work. I have already set out the gist of Dr Johns' report. In the light of that, and its unequivocal acceptance by the Medical Referee, it is clear that when she says that "it is possible that Mr Crocker may be able to work again in the future", she is referring to a possibility that is neither current, nor one arising in the immediate future; the possibility may arise only at some unknown point in the future. She is saying that currently Mr Crocker has no earning capacity.
  38. It is plain that that is also how the Medical Referee understood what she said. He concluded that there was no immediate prospect of Mr Crocker recovering fitness, although he said that Mr Crocker's position should be reviewed in a year's time.
  39. That reading of his decision is confirmed by his letter of 24th November 2002. He recognised that at some unknown point in the future, and subject to the way in which Mr Crocker re-entered employment, Mr Crocker might be able to work in some restricted way again. Thus, there is no current earning capacity upon Dr Anton's decision, but there might be some in the future. Accordingly, the first attack upon the Medical Referee's decision fails, confined as it was to the medical evidence as to the current position in relation to earnings capacity.
  40. However, the submissions revealed that there was a different and troublesome point within the different approaches to what the Medical Referee found when accepting Dr Johns' evidence. Counsel asked if further submissions in writing could be made on this point, which they were.
  41. Mr Pitt-Payne submitted that it was necessary for the Medical Referee to take contingencies and future possibilities into account as part of his assessment of the degree of disablement. He pointed out that although Regulation K2 enabled the pension part of the injury award to be reviewed, that did not apply to the gratuity part. What, therefore, had to be looked at was what was likely in the future, over the working life of the officer. Taking a snapshot would mean that the gratuity component of the award would be paid on 100 per cent loss basis, even where it was likely that a police officer would work again. This would create anomalies between such an officer and one who was permanently disabled, as to 50 per cent, for example. Similar anomalies could arise under the Police Injury Benefit Regulations.
  42. Regulation A12(3) upon which Miss Hill relied, and which referred to an officer being deemed to be "totally disabled" if he was in hospital as an inpatient, was said to prove his point. This was an exception demonstrating the rule. There would otherwise have been, submitted Mr Mr Pitt-Payne, a provision for mandatory reviews rather than the present arrangements. If Miss Hill were right, there would be no finality to the assessment process. Regulation A12(1) was of no assistance because it went only to the time at which the decision was made as to the permanence of disablement and not to the quantification of the award.
  43. Miss Hill submitted that the existence of the review power meant that the focus of the analysis had to be the current position rather than the speculative future. She pointed to the wording of A12(1). Mr Crocker was already a person whose disablement was, or was likely to be, permanent and who thus received an award including a gratuity.
  44. The language of A12(3) required the decision-maker to examine how much earning capacity had been affected and not how much it might be affected in the future. The need to examine the current position was illustrated by the position of someone in hospital, as provided for by the tailpiece to A12(3). There was no anomaly in a decision now being made as to the degree of disablement based on the current position, with review being available, albeit only for the larger pension part of the award; anomaly would be confined to the assessment of the gratuity alone. But the Regulations created other potential anomalies: someone in hospital, deemed to be totally disabled, would be better off than someone who was 25 per cent disabled, and if that disablement subsequently declined to 75 per cent that was still a person whose gratuity would not be amended. If someone's earning capacity was assessed to be 75 per cent changing to 25 per cent at some future, an award now of 50 per cent, say, and much would depend on the rate and timing of the decline or improvement, would lead to an award at times, in effect, too high, and at other times too low but rarely right. This could always be avoided by looking to the present and reviewing as and when things changed. The very formulation of the disability bands showed that no refined precision was required.
  45. I prefer the submissions of Miss Hill. The starting point is Regulation A12(3). It requires an assessment of how earning capacity "has been affected", not of how it is likely to be affected. There is a degree of contrast with the language of the assessment of permanent disablement which does look forward. It requires someone disabled to be, or to be "likely to be", permanently disabled as at the time when the assessment is made. The same review provision applies to both, but it shows that the assessment of how earning capacity has been affected is not to be answered by reference even to what is likely to eventuate, let alone by reference to any more remote possibilities. This makes sense in the context of legislation which provides for reviews of both the degree of disablement and of the effect of that disablement on earning capacity. These are reviews which can be undertaken as occasion requires rather than at mandatory but necessarily arbitrary intervals.
  46. The concept of earning capacity might be thought itself to contain an element of future potential, but the more normal connotations of capacity are of what is now achievable, to be contrasted with actual achievement, rather than with what in the future might become achievable.
  47. I acknowledge the argument that the focus on what now is a person's earning capacity means that the provision in A12(3), as to the position of someone being treated in hospital, may well have been unnecessary and, therefore, could be seen as an indicator that it expresses an exception to the rule rather than the rule itself. It can be very difficult to be sure whether legislation in this way is expressing the exception or the rule: the deeming of what would otherwise not be the case, or clarifying the position in respect of what might be a debatable example of a general rule. I believe it to be the latter.
  48. The degree of anomaly and arbitrariness would be quite pronounced, and yet, without any obvious reason, were it to be the exception to the rule rather than expression of it. I can think of no reason why someone in hospital should be treated as permanently and totally disabled because of a present condition but not others. Far more likely is that those in hospital were thought likely to have physical injuries, with a prognosis which enabled prediction of a degree of recovery and future capacity to be made, but that the Regulations did not intend that to be the cause of a reduction in, or removal of, entitlement to an injury award.
  49. I appreciate that there is an anomaly which can be said to arise over the fixing of the amount of gratuity in circumstances which may change. Yet this is significantly the smaller component of the award, and it is only payable to someone in respect of whom it has already been decided that he has been permanently disabled and has lost some degree of earning capacity. It is not subject to review at all, so that the anomaly relied on is an ever-present risk, however much one looks to the future. I do not see that the need to look forward, on Mr Pitt-Payne's approach, does more than introduce what is in varying degrees uncorrectable speculation. The absence of review for the gratuity reflects its proportion in the award for someone who is permanently disabled, together with the need for a reasonably straightforward and simple decision-making process, without undue sophistication in prediction.
  50. There is no warranty for saying that his approach would eliminate anomaly. It may reduce or aggravate disparity arising over the years between prediction and outcome. The real problem arises from the fact that one part of the award the pension is subject to review and the other is not. Yet the language as to their assessment is the same.
  51. I regard the review provision as the key. There is no need to speculate. As and when circumstances dictate, the pension is reviewed. The doctors, the Medical Referee, and Selected Medical Practitioner can, and here did, indicate when they thought that that should happen. Such a power is wholly inconsistent with a need to forecast the future and then to test the calculation of the forecast against the actual out turn on a number of occasions. The means by review of correcting the pension when circumstances change obviates the need not just to speculate, but to speculate and review as well.
  52. I also consider that some of the problems which can arise if the Medical Referee and Selected Medical Practitioner were required to look beyond the present are not ones which it would have been left for a doctor to resolve. The way in which one might assess someone who is now wholly without earning capacity, but who was likely to regain 50 per cent in two years, and might regain 75 in four years, is a problem for a rather different expertise. The Regulations make no provision for that sort of calculation, which, I believe, they would have done had that been intended. Instead, they have provided for the simple mechanism of review without arbitrary limit on the number or intervals between them.
  53. Accordingly, on the view which I have taken of the Medical Referee's decision, there is no further error revealed by his ignoring the future possibilities to which he and Dr Johns referred. Indeed, even if he had been in error in his approach, they are sufficiently remote, as I read his decision, that taken by themselves it is highly unlikely that they would have caused the award to fall below 75 per cent, which is what would have been necessary for any error to have made any difference to the award.
  54. The last point raised under this first head of attack by Mr Pitt-Payne was that the Medical Referee had wrongly taken into account the attitude of employers or of the labour market towards those suffering from the sort of mental illness from which Mr Crocker suffers. This was agreed to be irrelevant to the question of earning capacity. This ground of attack turns upon the significance of certain references in the Medical Referee's decision letter to such matters. Miss Hill said that they should be seen as reinforcing conclusions reached in relation to the degree of loss of earning capacity.
  55. The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers. There are two passages in particular which show that the Medical Referee has adopted a wrong approach in part. He comments that few employers would offer Mr Crocker a job if they knew his history, and that despite the Disability Discrimination Act, he is effectively unemployable. Both those comments relate to whether he would be employed to do what he could do rather than to the assessment of what actually he could do. I recognise that other comments relate to what he could do, and that position is properly set out in the later letter of 24th November 2002, but that cannot be taken in isolation.
  56. It is my view that there are two strands to the Medical Referee's thinking, one of which is legally irrelevant. He assesses the future possibility of Mr Crocker obtaining the sort of employment which he can do and concludes that he has no prospect of job offers in the immediate future; that is not the relevant test. But he also concludes that he has no immediate prospect of recovering fitness anyway, and on that ground has no current earning capacity. The two are complementary and consistent views, but it is only the latter which is relevant.
  57. However, as that latter conclusion is soundly based in the evidence and in the acceptance of what Dr Johns had to say, and it is a freestanding conclusion which does not depend on his conclusion as to the attitude of employers now or in future years, his decision is sufficient for present purposes. Without that error, the Medical Referee's decision as to Mr Crocker's current earning capacity would inevitably have been the same. Accordingly, the first ground does not lead to the quashing of the decision.
  58. The next issue relates to apportionment. It is agreed that the Medical Referee erred in not considering this issue. It was raised before him, as his decision makes clear. It is not possible to know upon what basis the Home Office said that it did not fall within his remit. Even though it was not raised by the Police Authority until later in the appeal, and the Home Office had earlier defined the issue as being the degree of loss of earning capacity caused by psychotic illness, that does not afford a basis for saying that the issue fell outside his remit. It may be that the Home Office was regarding its guidance at annex A4 as defining the only circumstances in which apportionment could arise, but that would be wrong.
  59. Miss Hill accepted that if an issue as to apportionment arose in any case, it did so under question (d) in H2(2), the degree of a person's disablement. It would be very odd if there were no mechanism whereby such a question could be resolved by the Selected Medical Practitioner or Medical Referee. The Home Office guidance did not suggest that it fell outside a Medical Referee's jurisdiction. That guidance anyway define the limits of any jurisdiction as to such an issue; those limits are to be found within the Regulations. The guidance may relate to the most obvious example of a case where the need for apportionment arises, but that is not to say that it is incapable of arising in any other case. It was for the Medical Referee to consider the position and he did not do so, though no blame can be attached to him for his refusal to do so in the light of specific but erroneous advice which he received from the Home Office. It is, therefore, in the light of that error, necessary to see whether, as Miss Hill contends, it made no difference to the decision.
  60. Mr Pitt-Payne submitted that it was at least for consideration by the Medical Referee whether or not there were two injuries. First, he submitted there was the chemical imbalance in the brain which was an injury within the definition in the Regulations and which the Police Authority contended was a non-duty injury. Second, there was the duty injury which was sustained as a result of stress at work acting upon and exacerbating the pre-existing injury. If the Medical Referee had applied his mind to the issue, he might have concluded that that was the correct analysis and, accordingly, would have had to consider the degree to which the award had to be reduced on account of the non-duty injury. No one could tell what his conclusion might have been, let alone what effect it would have had on percentage of disablement, and whether or not it would have placed the award in a different band. Certainly the Police Authority contended that it would have done. This was, submitted Mr Pitt-Payne, a medical issue for the Medical Referee to consider. He accepted, however, that if there had been a single injury with two causes, no question of apportionment would arise.
  61. But Miss Hill submitted that it was clear from all the evidence on both sides that there was but one injury, schizoaffective psychosis; that was how the Selected Medical Practitioner's certificate had described it, likewise the Medical Referee. He had accepted Dr Johns' evidence, and she had described it in her 2002 report and 1999 report as one illness, in effect, exacerbated by stress at work. That was one illness and one injury. It was not a medical question but a causation question.
  62. Both drew upon the judgment of Stanley Burnton J in Morgan and Lewis-Davidson. Mr Pitt-Payne pointed out that the Medical Referee's failing there was not to consider apportionment where a duty injury, over-work, which led to depression had been exacerbated by two non-duty injuries. There was the one illness. There would have been no need for him to send the matter back to the Medical Referee, if all that the Medical Referee had had to do was to identify whether or not there had been a single illness.
  63. Miss Hill sought to rely on paragraph 25 of the judgment. She submitted that the judge was drawing a distinction between injury and disability, which he said did not apply where the disablement was caused by a single injury which itself had been caused partly by a duty injury and partly by a non-duty injury. The judge suggested that if there were a single injury with multiple causes or if, for example, a depressive illness had been exacerbated by a non-duty injury, and Miss Hill said the same would be true for the converse, as here, there would be a different approach from that set out in the Home Office guidance. Normal rules of causation would determine that it was sufficient if the duty injury was a substantial cause of the injury. It is then implicit in his judgment that there would be no apportionment.
  64. I accept that there is a distinction in the Regulations between A13, which deals with entitlement, and A12(3), which deals with the degree of disablement. There was no dispute but that Mr Crocker had suffered a duty injury which caused, or substantially contributed to, his disablement. He was, therefore, entitled to an injury award. The degree of disablement then fell to be examined under A12(3). A12(3) contains two components which are relevant to the answers to the question in H2(2)(d), which deals with the degree of disablement. First, the degree of disablement has to be assessed. This is assessed by the degree of loss of earning capacity. Second, it is necessary to determine the degree to which that loss is the result "of an injury received without his own default in the execution of his duty as a member of a police force." It is necessary, therefore, to discount the effect of any non-qualifying injury and any other cause whether classified as an injury or not. This could either be a non-duty injury, or an injury received through his own default, or some other cause. The focus of the Regulations is therefore not exclusively on contrasting duty and non-duty injuries. Although the latter are the most obvious example of a second cause of the loss of earning capacity, I do not consider that they represent the limits of what has to be disregarded for this purpose. I consider that what has to be disregarded is every factor which has affected the loss of earning capacity other than the duty injury.
  65. Taking the example of someone with a heart condition, which could be classified as an injury within the Regulations, and comparing him with someone whose fitness is below what is necessary for the sudden exertions which an officer may be called on to make, but who does not have a recognised injury, I find it difficult to see that a distinction should be drawn between them for these purposes. The policy behind this requirement for apportionment is simple: an injury award should not be paid other than for injury received and earning capacity lost in the execution of the officer's duty. The assessment process should thus discount the effect of any other factors. It looks for the loss caused by the duty injury and nothing else.
  66. So the question to be answered under the Regulations is what degree of the loss of earning capacity is the result of the duty injury? This seemingly simple question can give rise to acute problems of causation, even though the question of whether or not there has been a disability which the duty injury has caused, or substantially contributed to, has already been answered. A separate issue of causation arises at the apportionment stage, because the entitlement stage can be passed on the basis of an injury which substantially contributes to, but is not the whole cause of, disablement.
  67. The position may be simple enough at least conceptually, where there are two separate causes of the loss of earning capacity, each making a contribution to the total loss. That is clearly the situation envisaged in the Home Office guidance. The position is more complex where the total loss is attributable to the effect of a duty injury on an underlying condition, which may or may not be an injury within the definition in the Regulations, and which by itself may or may not have contributed to a separate loss of earning capacity. An officer might suffer from a condition which would not affect him or his earning capacity until aggravated by a duty injury. These may be circumstances, for example, in which an officer in better physical shape would have avoided any injury or loss of earning capacity.
  68. I do not consider that the question of apportionment should be answered by trying to attribute a share of the loss of earning capacity to any underlying condition which, on its own, had not, or did not, cause a loss of earning capacity. The loss should be attributed wholly to the duty injury which, albeit because of that underlying condition, has directly caused the loss of earning capacity.
  69. I consider that this approach reflects the statutory question which has to be answered. It is a straightforward approach which fits with the process for making the assessment, which is comparatively informal, and one in which doctors, and not lawyers or philosophers, make the decisions. Although it may be objected that the straw which broke the camel's back may enable its owner to attribute the whole of its breakdown to a small additional load, it does at least reflect the fact that up to that moment there had been no loss of capacity for work. As the object of the Regulations is to enable an award to be made for the loss of earning capacity caused by the duty injury, it is important to see whether the underlying illness or condition had actually caused any such loss before it was affected by the duty injury.
  70. I also think that this avoids the anomalies which could arise if underlying causes of the duty injury, or of its extent, could be brought in when, in reality, it is the impact of the duty injury upon it which has caused the loss of earning capacity. Is the officer who is overweight to have a portion of his award removed because had he been in better shape he would have avoided the duty injury or minimised its effect? Is someone who has a heart condition, unbeknownst to him, likewise to be affected when his duty injury becomes the more severe in consequence? In reality, as with many causation issues, the answer depends upon the purpose for which the question is being asked, and it is closely bound up with who should bear the responsibility for the differing causes.
  71. Here, the question relates to the degree of loss of earning capacity attributed to an injury arising in the execution of duty without default by the officer, who may not know that he suffers from the condition which will later be relied on to reduce his award, on the claimant's analysis, and is not in a position always to regulate his duty activities and exertion if he did.
  72. Before apportionment can arise each factor must separately cause some degree of loss on its own. Although one may be able to analyse this case as a "two injury case", or "one injury exacerbating another", that is not at root a medical question. It is a causation question, or a question of where responsibility should be attributed for the loss of earning capacity in the context of these Regulations. The attribution of responsibility in the question at root so often in causation cases. It is a legal question whether if the first factor has not separately caused an injury, it is nonetheless to be treated as part of the cause of loss. Both components may pass the "but for" test, a test which is neither always necessary, nor usually a sufficient condition, for responsibility.
  73. Applying that approach here, if the stress at work caused the whole of the loss of earning capacity, whatever that degree of loss might be, it does not matter that the loss was caused by the impact of the duty injury on the underlying chemical imbalance in the brain. It is irrelevant that the stress would have had no effect upon the loss of earning capacity if there had been no underlying chemical imbalance. On the other hand, if that underlying condition by itself had already caused a loss of earning capacity, which was then worsened as a matter of degree by the stress at work, the duty injury, increasing the loss of earning capacity, the total loss would fall to be apportioned between the two causes.
  74. It is not a question of whether that loss would have happened in due course as a result of the underlying condition alone, but a question of whether it actually had caused part of the loss of the earning capacity. There is a distinction to be drawn between the position where a duty injury and other causes, such as another injury, each separately cause a degree of disablement and loss of earning capacity, and the position where the non-duty injury has caused no loss of earning capacity itself but which the duty injury has exacerbated thereby causing the loss. Any other approach would, in this context, involve asking not what degree of disablement and loss was caused by the duty injury, but instead asking what caused the illness or injury.
  75. I was not referred to any of the many and, at times, difficult cases in the law of tort on causation of loss and liability. The two are inextricably linked, and there is a strong component of legal policy in deciding where responsibility should lie for what acts, with results differing from one type of tort to another. I do not suppose that the Medical Referee felt that he would have been assisted had he considered the issue with such authorities. It would seem an inappropriately sophisticated approach to take in a case of a Medical Referee decision to measure it against the complexities of those tort cases. However, I regard my conclusions as consistent with the approach which the common law would apply, a broad and, I hope, simple approach in the context of this legislation and its purpose.
  76. I also consider that approach to be consistent with what Stanley Burnton J said in paragraph 25 of his judgment, when he referred to single injuries with multiple causes, concurrent cause of stress, or to a condition being exacerbated by a non-duty injury. Although he is discussing apportionment, but at the end of the paragraph appears to refer to the causation test relevant for the purposes of entitlement, he does so, in my assessment, because once the causation requirement had been met there was, in his view, no apportionment issue in such cases.
  77. I do not think that that is inconsistent with what Stanley Burnton J actually decided in that case on its facts, where there was only one illness, depression, and its degree, and hence its impact on earnings capacity had been worsened by two subsequent non-duty related injuries. The facts showed three events or injuries, only one of which was a duty injury, each of which made a separate impact as a matter of degree on the officer's earning capacity. The Medical Referee's failure, through not appreciating that only one was a duty injury, was that he had not apportioned the loss of earning capacity between the duty injury and the two other causes. It was not so much the fact that there was one illness which mattered, it was the existence of three different potential causes for the total degree of loss of earning capacity.
  78. The problem in this case, however, is that it is unclear on the facts whether there had been any loss of earning capacity already caused by the underlying condition, or whether the stress had been the sole cause, albeit acting on the underlying condition of the loss. Indeed, Dr Johns' report refers to the prospect that work had been part of the cause of the underlying condition, the chemical imbalance in the brain, in the first place.
  79. Miss Hill submitted that although the duty stress exacerbated and acted on the underlying condition, so as to give rise to the whole of the loss of earning capacity, it was the duty injury which alone had caused that loss. There had been no loss of earning capacity before the impact of the stress at work, the duty injury, on the underlying condition. That was certainly my impression of Dr Johns' evidence and of the Medical Referee's conclusion. It was, submitted Miss Hill, artificial to regard the underlying condition and its exacerbation as two separate injuries or conditions.
  80. Mr Pitt-Payne, however, submitted that the case which the claimant would have put to the Medical Referee, had it had the chance to do so, was that the chemical imbalance, i.e. the underlying condition, was a non-duty injury and had directly caused a degree of loss of earning capacity, even without any effect from the work related stress, the duty injury.
  81. I have seen no evidence to support that contention. I am concerned lest the Police Authority is still taking the view that the underlying condition caused the loss of earning capacity simply on the basis that without it the stress at work would not have caused the loss of earning capacity, an approach which I regard as wrong in law. I would have thought that the parties would have been at one as to whether before the stress at work there had been an actual loss of earning capacity. The claimant's submissions to the Selected Medical Practitioner and to the Medical Referee were uninformative on this point and that would normally tell against them in the circumstances.
  82. I do recognise that here the claimant did try to raise an issue which the Medical Referee regarded wrongly as beyond his remit, and had he considered it, the sort of point which I have been dealing with and the evidence on it, would have been made clear. I cannot tell for sure what evidence or argument the claimant would have placed before the Medical Referee, had the Medical Referee said that the issue fell within his remit.
  83. In the light of what Mr Pitt-Payne tells me, although it is not set out in any witness statement, nor is there any indication of what the claimant would have placed before the Medical Referee had he not said that apportionment was outside his remit, I have come to the conclusion that the decision cannot stand, erroneous as it is, in its consideration of apportionment.
  84. I conclude, with some regret, that I have to allow this application and quash the Medical Referee's decision so that the issue of apportionment can be dealt with. I cannot tell what the apportionment would have been, if any, and whether it would have been insufficiently different to maintain the decision within the 75 to 100 per cent band. I would express the hope that if the position is that, on my approach, the stress was the sole cause of the loss of earning capacity, through exacerbating the underlying condition, and whether or not the work stress had contributed to its creation in the first place, that the allowing of this application would not lead to any delay in the payment of the full award.
  85. Nonetheless, for the reasons which I have given, this decision is quashed and the appeal should be considered by a different Medical Referee before whom all the matters which I have considered will be at large.
  86. MR PITT-PAYNE: My Lord, in the light of your Lordship's judgment, and as your Lordship has quashed the decision of the Medical Referee, I would ask that the Police Authority should have their costs in the usual way?
  87. MR JUSTICE OUSELEY: Miss Hill?
  88. MISS HILL: I cannot object to that.
  89. MR JUSTICE OUSELEY: I do not think you can. It is unfortunate he was led into error. In many ways, one would like the Home Office to pay, but they are not here. Are there any arrangements -- upon whom falls the costs, the Police Federation?
  90. MISS HILL: My Lord, as far as I understand it.
  91. MR JUSTICE OUSELEY: In the light of my judgment, they might enclose the judgment and the bill and send it to the Home Office. There will be an order for costs to be subject to detailed assessment -- I have not seen any schedule of costs?
  92. MISS HILL: My Lord, I think one was prepared.
  93. MR JUSTICE OUSELEY: I can deal with it then. Is there a debate about it? I do not think I have it, Mr Pitt-Payne.
  94. MR PITT-PAYNE: Yes, schedules of costs have been exchanged.
  95. MR JUSTICE OUSELEY: Have they been provided to me? Is there a debate about it, Miss Hill, about the quantum?
  96. MR PITT-PAYNE: Well, the claimant's costs come to -- I am sorry, there is some confusion.
  97. MISS HILL: My Lord, I have not the schedule.
  98. MR JUSTICE OUSELEY: Just have a look at it.
  99. MR PITT-PAYNE: (Pause) My Lord, there seems to be some issue as to whether my friend's solicitors have actually seen our schedule. I understood that they had. In the circumstances, could I ask that costs be the subject of detailed assessment if not agreed?
  100. MR JUSTICE OUSELEY: Yes.
  101. MISS HILL: My Lord, I am sorry, I am not in a position, I have no solicitor here today.
  102. MR JUSTICE OUSELEY: Very well. Miss Hill.
  103. MISS HILL: My Lord, the other issue that arises is my instructing solicitor is concerned about the case and would wish to consider the ramifications of the judgment. He has asked me to consider whether you would hear an application for leave to appeal once we had a chance to consider the judgment?
  104. MR JUSTICE OUSELEY: Yes, I understand that, but one of the problems with it and, in a sense, I do not know, Mr Pitt-Payne may feel he has won the battle and lost the war, is because of the error of the Medical Referee, one does not, in the end, I felt, really know what the actual position is, whether in terms of psychiatry or cause. I am not sure how much further you would actually get, that is what you would need to persuade me of. In a sense, I tried to give some guidance of how the matter should be approached when it goes back, and I appreciate that it can be said that if that guidance is wrong, then you will all be back here in front of a different judge arguing the point before you get up to the Court of Appeal. On the other hand, the Court of Appeal is just as likely to say, 'Do we not really need to know what is actually being said before we can decide what is appropriate?' That is, I think, the dilemma in relation to an appeal. I am open to persuasion, or do you want to make an application later?
  105. MISS HILL: My Lord, I would wish to make an application later, and the reason is that obviously parts of your judgment gives statement of principle which may be something the Federation are comforted or assisted by.
  106. MR JUSTICE OUSELEY: Yes, you lost but you, on the whole, got the better of the argument, it is specific and general. Whereas Mr Pitt-Payne, who has won, probably might be quite pleased if you appealed.
  107. MISS HILL: That is precisely why I rather not apply for leave to appeal now, in case you granted it, my Lord.
  108. MR JUSTICE OUSELEY: Perhaps Mr Pitt-Payne's clients will fund it.
  109. MISS HILL: My Lord, if I can take it that you would be willing to hear something----
  110. MR JUSTICE OUSELEY: Yes, I am willing to hear it, in some ways it might be easier to deal with it in writing, but can I leave you and Mr Mr Pitt-Payne to discuss how you want to deal with that. So you need an extension of time.
  111. MISS HILL: My Lord, I would ask for seven days. I am sure we will form a view very quickly.
  112. MR JUSTICE OUSELEY: You have enough, you do not need the transcript, you have enough notes. I noticed that, at various points, Mr Pitt-Payne finally gave up noting down the words of wisdom.
  113. MISS HILL: My Lord, is there any indication of how long the judgment will take to be available?
  114. MR JUSTICE OUSELEY: Sometime next week, but then I will have to approve it. There are always minor changes. So you might get it in the last week of term. It would be nice to try and have it -- I will expedite it and it will be corrected, if possible, by the end of next week or very early the week after. Will you be in touch via my clerk then as to what you want to do because I am not sitting over here at the moment, it will have to fit in with my other commitments.
  115. MISS HILL: I suspect, my Lord, that I can convey most of it anyway from my notes.
  116. MR JUSTICE OUSELEY: Yes, but you might want to look at it. That is the issue that troubles me in it, I would otherwise have said, yes, it is an appropriate case in terms of the issue of causation and the way in which future capacity is taken into account. But it is just a question of whether this is really an appropriate case on which to hang that.
  117. I do not know whether you have any views on that at the moment, Mr Pitt-Payne?
  118. MR PITT-PAYNE: My Lord, in relation to the application for permission to appeal, if the application is made I am likely to oppose it but, of course, I shall need to take instructions. If, however, you were minded to give my friend permission to appeal, then I think it likely that we would wish to cross-appeal in relation to future capacity.
  119. MR JUSTICE OUSELEY: Yes, but I do not think you need my leave to do that. No, I assumed you would want to contest everything except the outcome.
  120. MR PITT-PAYNE: Yes. The other issue that obviously arises from your Lordship's judgment is that on my side we will need to consider very carefully the guidance that you have given, and whether, in the light of that guidance, what the likely outcome would be if the case went back before the medical----
  121. MR JUSTICE OUSELEY: You see if the reality is, Mr Pitt-Payne, if you consider the position in the light of what I said is the approach to be adopted and the conclusion is actually, that means the award is going to have to be paid--
  122. MR PITT-PAYNE: Yes.
  123. MR JUSTICE OUSELEY: -- then the concern I have about granting leave to appeal goes, because you would be saying to the Court of Appeal that this has determined the outcome because, in reality, this is an issue of underlying condition not causing a problem, exacerbation does cause a loss of earning capacity. So, if you like, your pure causation point is open to you for argument on the facts. There is an issue there which is worthy of going to the Court of Appeal.
  124. MR PITT-PAYNE: Yes.
  125. MR JUSTICE OUSELEY: So I think you could decide of course to take the chance on this one, but I appreciate your position. Miss Hill, if you can get your instructions pretty quickly in relation to that point, it may mean that the issue of a grant of leave to appeal is resolved very quickly.
  126. So if I am considering the matter in the week starting 15th December, and it possibly could be pushed towards the end of that week, if you knew what your client's position was in consequence, as to its prospect of success or the way the award would actually go, it may assist the whole question.
  127. I do not think that any other order is required at the moment, and I look forward to hearing from you both.
  128. MISS HILL: My Lord, we will confirm the position either way.
  129. MR JUSTICE OUSELEY: Yes, thank you.


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