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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kaur, R (on the application of) v Ilex Tribunal [2010] EWHC 3321 (Admin) (23 November 2010)
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Cite as: [2010] EWHC 3321 (Admin), [2011] ACD 25

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Neutral Citation Number: [2010] EWHC 3321 (Admin)
Case No. CO/12227/2009

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

Royal Courts of Justice
Strand
London WC2A 2LL
23rd November 2010

B e f o r e :

MR JUSTICE FOSKETT
____________________

Between:
THE QUEEN ON THE APPLICATION OF KAUR Claimant
v
ILEX TRIBUNAL Defendant

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Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr M Beaumont (Instructed By Public Access Scheme) Appeared On Behalf Of The Claimant
Mr J K Mccartney (Instructed By Russell-Cooke Solicitors) Appeared On Behalf Of The Defendant

____________________

HTML VERSION OF JUDGMENT
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  1. MR JUSTICE FOSKETT: This application for judicial review raises a short point about the constitution of the disciplinary tribunals within the disciplinary framework of the Institute of Legal Executives, ILEX for short. It is brought following the grant of permission on paper by Elias LJ on 2 July of this year, on appeal from a decision of Simon J on 14 April, when he refused a renewed application to grant the claimant permission to bring judicial review proceedings, permission having previously been refused on the papers.
  2. ILEX is the professional body representing approximately 22,000 practising legal executives and trainees. I will say a little more about its precise status later. At the time of the material offence the claimant was a registered student member of ILEX and subject to its code of conduct. She was one of a number of student members of ILEX who took certain law and practice examinations in May 2007. She had undertaken her studies at what was then called the London College of Advanced Studies and it was at, or at least under the auspices of, that institution that she, along with others, took those examinations. The rules applicable to the taking of relevant papers precluded the taking in to the examinations of any course examinations.
  3. During the marking process of a number of papers, one examiner noted similarities between the scripts of two candidates from the college. As a result, all of the scripts of the candidates from the college were examined and analysed by the ILEX Awards Department. This process revealed similarities between the scripts of certain candidates, or similarities between candidate scripts, and the ILEX Tutorial College ("ITC") course materials.
  4. Following further investigations and a decision by the ILEX Investigating Committee the claimant and five other student members of ILEX were charged with various disciplinary offences. The essential allegation was that she had:
  5. "engaged in conduct unbefitting to ILEX or likely to bring ILEX into disrepute contrary to rule 1(1) of the code of conduct and/or conducting herself in a matter to cast doubt on her professional integrity contrary to 1(2) of the code of conduct."

    In that:

    "either alone or with others -
    1. She cheated in two ILEX examinations;
    2. She produced two examination scripts that were not wholly her own work; or
    3. Were not wholly from her own knowledge or memory."

    The allegation against her was to the effect that she must have had access to the course manual during two examinations.

  6. The allegations against all six students were brought before the ILEX Disciplinary Tribunal ("DT") in March 2009. Only one of the six attended the proceedings, and he attended for the first of the two days only. The claimant, who had taken legal advice during the investigation process, did not attend and was not represented. However, she made it clear that she denied the allegations and said in her defence, presumably by way of explanation, that she had completed a photo reading course.
  7. The DT dismissed one charge against her but found the other charge proved. It dismissed the charge against one other student, but found the charges proved against the other four. It ordered that each of those against whom charges were proved should be excluded from ILEX for a minimum period of five years and should pay costs of 1700.
  8. The claimant and one of the other students invoked the appeal process provided for within ILEX. The ILEX Appeal Tribunal ("IAT") heard the appeals on 24 June 2009 and rejected the appeals in each case.
  9. The grounds upon which the IAT may set aside a finding of the DT are limited and in this case was limited to the question of whether its decision, that is the decision of the DT, involved a breach of the rules of natural justice.
  10. The claimant was represented at the appeal hearing and her representative took the points that now form the basis for the present application. The claimant continues to protest her innocence of any wrongdoing, but recognises that there is nothing she can do in these proceedings to challenge directly the substance of the decision made by these disciplinary tribunals. Her challenge is directed towards integrity of the process which pertained at the time. In fact the process has subsequently been changed such that the matter about which she complains in these proceedings could no longer be a matter of complaint. However, I must judge whether the process to which she was subject was flawed by reason of the matters to which I will turn shortly. There is, however, a preliminary matter I must deal with, namely to what extent, if at all, ILEX is amenable to judicial review.
  11. Mr Kevin McCartney, who appears for ILEX, submits that the source of ILEX's disciplinary powers is derived exclusively from the consensual submission by those subject to its jurisdiction. The suggestion, as I understand it, is that the presence of a contractual source of power precludes judicial review. He draws attention to cases like R v the Disciplinary Committee of the Jockey Club [1993] 1 WLR 909 and R v the Insurance Ombudsman Bureau ex parte Aegon Life Insurance Limited [1994] CLC 88 in support of the proposition that its power over the appeal process was solely contractual and was not part of a governmental system of control. Its functions, it is said, are not supported by any public law function.
  12. He further submits that even if in principle ILEX is amenable to judicial review, the remedy should not be available to review properly implemented procedures of a private company which have not been abused, exceeded, or produced any identifiable injustice.
  13. I cannot accept either of these submissions. As things now stand, ILEX is an approved regulator for the purposes of The Legal Services Act 2007, but irrespective of that it had been hitherto, as indeed it remains, amongst other things the guardian of the disciplinary arrangements for this particular branch of the legal profession. Given that the disciplinary functions of virtually every other profession which either directly or indirectly serves the public, and thus the public interest, for example the other branches of the legal profession and the medical profession, are and have been for many years subject to the ultimate supervisory jurisdiction of the court, I cannot see how it could be said that ILEX is not. Any public law remedy would, of course, be adjusted to the issue that is the subject of any complaint held to be justified. However, if it is argued that there can be no remedy in relation to unfair internal processes simply because they are the processes of a private company, then I cannot accept that argument.
  14. There may have been many reasons why the vehicle of a private company was chosen to underpin the activities of ILEX, but they afford no grounds in my judgment to restrict judicial review remedies in any aspect of its activities that has a public element. Disciplinary functions have a significant public element attached to them. It follows that, in my view, there is no jurisdictional obstacle to the claimant's claim.
  15. What lies at the heart of this application is the involvement of serving ILEX Council members on the DT and the IAT respectively. In accordance with the arrangements permitted at the time, the DT comprised two lay members, one of whom was Chair, and the serving ILEX member, Mr N Hanning, and the IAT again comprised a lay Chair, a lay member and a Miss J Gordon-Nichols, who at the time was the serving Vice-President of the ILEX Council. I understand that she is the current serving President of ILEX.
  16. The essential submission from Mr Mark Beaumonst on behalf of the claimant is that the involvement of serving ILEX council members in this way engages the common law doctrine of apparent bias and/or the rule of automatic disqualification that no man should be a judge in his own cause. Although the skeleton argument and the grounds also refer to Article 6 of the European Convention on Human Rights, he placed less reliance on that in his oral argument today and said that he did not need to rely on Article 6, because the common law governed the situation. I should say at the outset that Mr Beaumonst said very clearly at the commencement of today's hearing, and I emphasise further, that there is absolutely no suggestion that Mr Hanning or Miss Gordon-Nichols were guilty of any actual bias in discharging their responsibilities in this matter. The judicial review claim revolves around the issues of the appearance of bias and the potential conflict of interest.
  17. As I have indicated, the involvement of serving ILEX council members on the DT and the IAT was provided for expressly in the rules that obtained at the time. Rule 59 of the Investigation, Disciplinary and Appeal Rules as it was at the time provided in relation of the DT that when a matter was referred to the DT it would be:
  18. "heard by three members of the disciplinary tribunal, of whom two shall be lay members and one shall be a council member."
  19. Rule 73 provided that an Appeals Tribunal shall comprise:
  20. (a) the president or the vice-president of the institute, or -
    (b) two lay members who did not sit on the panel which heard the original application."
  21. In order to put a little flesh on the bare bones of that aspect of its processes, I should say a little more about the structure of ILEX as it was at the time. Mr Beaumont has drawn attention to what was said about ILEX on its website, from which the following short description is taken, and about which I understand that there is no significant dispute:
  22. "ILEX is a company limited by guarantee and governed by elected representatives known as the Council. Council members are responsible for ensuring that the affairs of the institute are conducted 'diligently, legally and honestly.'.
    The Council makes all the strategic and policy decisions of ILEX as a professional body which are then implemented at an operational level by the Chief Executive and his/her team of officers and staff. The Council members are drawn from and represent the twelve constituencies in England and Wales. Most of those constituencies have two Council representatives, depending on the size of the membership within those areas. Additional members may be appointed to the Council as specialist or co-opted members to represent particular areas of legal practice or special knowledge. The Articles of Association of ILEX regulate in general terms the powers and obligations of the Council, including membership criteria and the number of members of the Council.
    Council members are directors of the company and are accordingly required to exercise the duties, fiduciary and otherwise, expected of any director of a company, and like ordinary directors, they are required to retire on a rotational basis every three years."

    For the record Mr Hanning and Miss Gordon-Nichols were directors of ILEX at the time that they adjudicated respectively on the claimant's case. The Articles of Association of ILEX provide that its objects include promoting and securing professional standards of conduct amongst Fellows and those that are registered with ILEX and the regulation of Fellows and registered persons in the public interest to ensure compliance with those standards and providing for the education and training of those seeking qualification. The Articles of Association also provide that ILEX had powers to achieve these objectives by forming a company and entering into ventures with education providers, such as the college where the claimant studied and took her examinations.

    Mr Beaumont has placed particular emphasis on the duty that is thus imposed on Council members as directors of ILEX:

    "to promote and secure professional standards of conduct... and to ensure compliance with those standards."

    I will return to this shortly.

  23. From October 2008 ILEX formed a company called ILEX Professional Standards Limited ("IPSL") to deal with ILEX's professional regulation and in particular the prosecution of cases of alleged professional misconduct, such as that involving the claimant. IPSL is a private company whose sole shareholder is the Chief Executive of ILEX, who subscribes expressly "for and on behalf of ILEX". IPSL is a company limited by shares, and as such is subject to the exercise of control, management and supervision of ILEX as its sole shareholder. The memorandum of association of IPSL states that the objectives of IPSL are to carry out on behalf of ILEX the functions and responsibilities of ILEX as an approved regulator designated as such by the Legal Services Act 2007, and to carry out on behalf of ILEX such functions and responsibilities of ILEX as a regulator of its membership generally, as ILEX may from time to time delegate to IPSL.
  24. So much for the corporate structure at the material time. Mr Beaumont's essential argument is that the two Council members were put in a position of conflict of interest, because they each owed ILEX a fiduciary duty to act in accordance with its constitution and to promote its success, which, as he put it in his helpful skeleton argument, "aligned the due performance of those duties with the cause of ILEX, and that of its wholly owned subsidiary ILEX Professional Standards Limited ("IPSL")." One of the parties to the proceedings before them.
  25. He argued that the involvement of ILEX council members as adjudicators engaged the rules of natural justice because of the constitutional commitment of the ILEX Council to professional discipline and those aspects of the Articles of Association upon which he placed particular emphasis and to which I have referred above. He submits that both council members were automatically disqualified from sitting, basing his argument on R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte Amnesty International and Others (No.2) [2000] 1 AC 119. He also draws attention in his context to the words of the late Lord Bingham of Cornhill in Davison v Scottish Ministers [2004] UKHL 34. That is case in which a member of the Scottish judiciary who sat as a member of an extra division of the Court of Session in a case against the Scottish Ministers had previously, in his role of Lord Advocate, and thus a government minister, had some responsibility in advising the House of Lords on the effect of section 21 of the Crown Proceedings Act 1947 and the remedies that might be available to the court in Scotland against the Scottish ministers. Lord Bingham said this at paragraph 6:
  26. "The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen or between the citizen and the State should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus, a judge will be disqualified from hearing a case, whether sitting alone or as a member of a multiple tribunal, if he or she has a personal interest which is not negligible in the outcome or a friend or relation of a party or a witness or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias, but the expression is not a happy one, since "bias" suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear which could distort the judge's judgment."
  27. Alternatively, basing his argument on Porter v Magill [2001] UKHL 27, Mr Beaumont submits that a fair minded and informed observer would construe the situation as creating a possibility of unconscious bias on the part of the decision makers because of what he characterised in his skeleton argument as:
  28. "an institutional inertia to decide in conformity with the cause of ILEX as a promoter of professional standards and of good legal education."
  29. This is a reflection of the emphasis he placed on the provisions of the Articles of Association to which I have referred. In that context he draws on what Lord Hope of Craighead said in Porter v Magill, when he said that the test was:
  30. "Whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
  31. Although, as I have said, he placed less reliance on Article 6 in his skeleton argument, he had drawn on the jurisprudence under Article 6, including the case of Findlay v United Kingdom [1997] 24 EHRR 221 in support of the proposition that Article 6 had been breached in this case.
  32. Mr Beaumonst recognises, as I understand it, that this application must be based on the arguments that are to be deployed in relation to the timing of the material events concerning the claimant, but he does draw attention to the way that the processes have been altered recently, broadly in support of the argument that the processes prior to the new arrangements must have been identified as flawed.
  33. As of 4 January of this year Council members would not be able to sit on the DT or the IAT. The rationale for that appears from something stated on the ILEX website in the following terms:
  34. "Following consultation with ILEX members IPS revised the rules governing how allegations about the conduct of members is investigated and disciplinary proceedings are brought. The main driver between the need for the revisions was that members of the ILEX Council served on the various committees and tribunals considering complaints. This no longer happens. The dual role was inconsistent with the requirement for complete separation of regulatory and representative functions. We also took the opportunity to draw on good practice among modern regulators and to edit away a good deal of verbiage which had become redundant over the years."
  35. In relation to the introduction of these new rules, Mr McCartney has drawn attention to the fact that they were implemented against the background of the coming into force of the relevant sections of the Legal Services Act 2007 on 5 January 2010. He also makes the point that the new rules provide for the appointment of a "professional" member of the Professional Conduct Panel, the Disciplinary Panel and the Appeals Panel. Rule 3 defines a professional as a Fellow of ILEX who is not a Council member or a board member of IPSL, but who, like all members of ILEX, is bound by the Articles of Association, which includes a commitment to the professional standards of ILEX members. That commitment, he says, is not limited to Council members and if Mr Beaumont's argument is correct it would prohibit any member of ILEX from being a panel member, no matter how fairly the proceedings were conducted and would ignore the fact that all members of ILEX are bound by the Articles Of association.
  36. The evidence that all members of ILEX are bound by the Articles of Association was somewhat sparse, but I permitted Mr McCartney, despite Mr Beaumont's legitimate objection that it was too late to do so, to show me the Code of Conduct that has been in existence for many years and binds every member at whatever level to the Articles of Association. Since I do not think that the point is going to be decisive against the claimant's argument, I do not consider that any prejudice has been occasioned by the admission of this material.
  37. I think there is some force in Mr McCartney's submission, but as I have already said, I must, as it seems to me, simply address Mr Beaumont's arguments without specific regard to what ILEX has done to meet the requirement of the Legal Services Act 2007.
  38. I should say at the outset that notwithstanding Mr Beaumont's strong submissions to the contrary, I do not consider that the corporate arrangements as I have described them, are relevant to the issues I have to consider for the reasons given by Mr McCartney in his skeleton argument. He submits that the mechanism by which IPSL was created is irrelevant and what matters is the guarantee that those who investigated and pursued the allegations of misconduct could not be a member of either the DT or the IAT. IPSL was created to regulate ILEX and, he argues, if a completely independent body conducted the regulation of ILEX it would raise financial obligations which would no doubt be the subject of complaint that its processes were not transparent. The creation of IPSL, he says, ensured that the mechanism of regulation was fair.
  39. I accept those arguments. They seem to me also to negate any argument that this case is governed by the principle stated in the Pinochet case. In that Lord Hoffmann was a director of a company which carried out much of its work for Amnesty International, an interested party, in pursuance of objectives which were, at least in part, the subject matter of the appeal. In this present case the ILEX council members were concerned with the disciplinary regulation if ILEX with no identifiable interest in the outcome for either party, other than the correctness of the decision on its merits.
  40. I have considered with care Mr Beaumont's argument that an obligation "to promote and secure professional standards of conduct... and to ensure compliance with those standards" gives rise to some interest that would engender an appearance of unfairness, but I am quite unable to accept that this is so. There is nothing in those words that suggests that a procedure which is intrinsically unfair should be adopted and as it seems it me, no express provisions governing the fairness of the disciplinary procedures to be adopted are needed. It goes without saying that the procedure should be fair.
  41. Although, in my judgment, only a makeweight in the argument at this stage, it is to be observed that there was a majority lay element to each Tribunal; one lay member being the chair in each Tribunal.
  42. Whilst many organisations are and have been taking steps to ensure both greater actual and perceived independence in their disciplinary functions, there is no doubt that self-regulation remains a legitimate process at both common law and under convention jurisprudence, provided, of course, that appropriate safeguards are in place. If authority is need to support this proposition then Sadler v the General Medical Council [2003] 1 WLR 2259, a decision of the Privy Council, provides it. Giving the opinion of the board, Lord Walker of Gestingthorpe said this at paragraph 77:
  43. "There is no general principle of convention jurisprudence which prevents professional self-regulation, see Albert in Le Compte v Belgium [1983] 5 EHRR 533 especially at 541 to 542, paragraph 29. Whether a tribunal satisfies the requirements of Article 6 depends on all the relevant circumstances, including how the members of tribunal are appointed, their tenure of office, their protection from outside pressure and their apparent independence, as evidenced by their standing in procedure, see Brown v United Kingdom [1994] 21 EHRR 342, especially at page 358, paragraph 37."
  44. This approach was relied upon by Plender J in Sadighi v the General Dental Council [2009] EWHC 1278 Admin where Mr Beaumont, on behalf of a dentist who was suspended by the Professional Conduct Committee of the General Dental Council, submitted that the decision to do so was defective and should be set aside because the members of the Professional Conduct Committee were appointed by the General Dental Council and the Professional Conduct Committee was under the chairmanship of a Dr Leitch, who had been an elected member of the General Dental Council from 2001 to 2003. As Plender J observed, Mr Beaumont's submission in that case came "very close to advancing the proposition that professional self-regulation is no longer permitted."
  45. Mr Beaumont says, of course, that the common law rule for disqualification is narrower than Article 6 requires. That may, strictly speaking, be so, but it does not mean that Article 6 jurisprudence is wholly irrelevant in this context. That case, and indeed others such as in Re: P (a barrister) [2005] 1 WLR 3019, demonstrates that the fundamental concern in this general area is that a member of the disciplinary panel should not have had an investigatory or screening role in the inquiry into the allegations of misconduct that he or she is called upon to consider. In that situation a perception of bias or conflict of interest can much more readily arise. There is no such suggestion in the present case, indeed Mr McCartney submits that the fact that IPSL was responsible for the investigating and prosecution of alleged misconduct ensured that no member of the DT or the IAT was or could ever be involved in the investigation or screening of such applications. That seems to me to be a point well made.
  46. As it seems to me, in common with the view taken by Simon J on the renewed permission hearing to which I have referred, the question of whether the claimant had cheated in an examination was not an issue which any member of the Council had any ulterior interest, either directly or indirectly. The desire properly to implement appropriate standards of behaviour within an organisation such as ILEX does not equate with an identifiable interest in the outcome of the proceedings. Indeed I would add that there is as much interest in dismissing a charge of cheating where there is any doubt about it as there is in finding it established where there is no doubt, perhaps particularly when the person against whom the allegation is made will spend his or her professional life defending the interests of those against whom similar allegations may be made.
  47. There can be no doubt that the DT in this case dismissed certain allegations, including one against the claimant, and that plainly evidences an objective and fair minded approach, even in respect of those who chose to play no part in contesting directly the allegations made. Whilst that cannot be an answer to a fundamental flaw in the systemic processes at the time, if it existed, it certainly gives confidence that the system did operate fairly.
  48. Although the matters raised by Mr Beaumont were legitimate matters for debate, consideration and sustained argument, in my judgment there are no sustainable grounds for challenging the involvement of Council members in the disciplinary system of ILEX at the time of these matters, irrespective of what the new arrangements may be. I can find nothing in their obligations under the Articles of Association or in any other way that presented them with a conflict of interest that required either automatic disqualification or gave rise to an appearance of bias in the mind of the reasonable observer.
  49. In those circumstances this application must be dismissed.
  50. MR MCCARTNEY: My Lord, I am instructed to make an application for costs.
  51. MR JUSTICE FOSKETT: I have seen a summary bill.
  52. MR MCCARTNEY: Might I pass one up?
  53. MR JUSTICE FOSKETT: I think I have it here. Can you just tell me where it is in the bundle?
  54. MR MCCARTNEY: I don't think my Lord has it in the bundle; I only received it this morning. My Lord, it has been broken down into three parts.
  55. MR JUSTICE FOSKETT: It is considerably higher than the one I saw before, I think. Where is the one I have seen?
  56. MR MCCARTNEY: It may be that the one my Lord saw before related to the renewed application for permission.
  57. MR JUSTICE FOSKETT: Right. Sorry, I must look at this. Well, I will obviously hear what Mr Beaumont says. You did not succeed on the no judicial review submission, you have succeeded on the others.
  58. MR MCCARTNEY: I will hear what Mr Beaumont says, then perhaps I may respond.
  59. MR JUSTICE FOSKETT: All right. Mr Beaumont, have you had a chance to digest it?
  60. MR BEAUMONT: Not really. Just by way of open query, part one I think deals with permission. Certainly one could say in relation to part two, ILEX contested the grant of permission and ultimately failed. They did not have to contest the grant of permission.
  61. MR JUSTICE FOSKETT: Yes, what I am really focusing on is the preparations for today's hearing. Whatever costs orders have been made in the past they simply stand as they are. I think you had to pay some costs in relation to what Simon J ordered you to pay costs, is that right?
  62. MR BEAUMONT: We were discussing it, and we were just wondering whether -- without having the order of Elias LJ before me -- implicitly that would have been overturned.
  63. MR JUSTICE FOSKETT: It seems logical that that probably should have been. As you quite rightly say the ultimate result of that part of the proceedings was that you obtained your permission.
  64. MR BEAUMONT: Yes. As far as the proceedings up until the grant of permission on paper by the Court of Appeal are concerned the test was one of arguability, and as your Lordship has remarked, these arguments were properly brought in the sense that they were reasonably arguable.
  65. MR JUSTICE FOSKETT: Yes, Elias LJ said that and I do not disagree.
  66. MR BEAUMONT: The point in relation to costs is that the other side did not need to expend so much energy resisting the irresistible. The other general point I would make is that since there is actually only one witness statement in the case the proper costs of preparing that witness statement, which is of moderate length, should plainly be allowed. The real work in the case was done by counsel in terms of responding to my legal arguments and to be frank one could not possibly quarrel with his brief fee which, with the greatest of respect, is probably too low and which is the same as mine, which is also too low. I am not quarrelling with Mr McCartney's brief fee. I am wondering what other work was done. The solicitors units are fairly inscrutable. I am trying to see what 63 units means. 6 hours 18 minutes, thank you. So in unit 3, 6 hours 18 minutes at 210 an hour to attend on the other side, which presumably means read something, is on the face of it possibly unjustified. That is an example of why I would say that it should go off to detailed assessment, in my respectful submission, because simply putting down one has spent 28 units on, for example, the second page, attending on the defendant, I am not sure what that means, or even 70 units on the following page, work done on documents, is so inscrutable that one wonders how the court on a summary assessment is supposed to penetrate behind it.
  67. MR JUSTICE FOSKETT: I will hear what Mr McCartney says, but my inclination is to focus solely on -- part three is the period since the grant of permission by Elias LJ, is that right?
  68. MR MCCARTNEY: Yes, that is right.
  69. MR JUSTICE FOSKETT: My inclination is to focus on part 3, they are seeking 6,700 odd. I am quite certain there is a palm tree waving around somewhere where I can exercise a degree of discretion. I can send it off for assessment but it is all time, it is all costs, it is hardly worth it from anybody's point of view.
  70. MR BEAUMONT: If and to the extent that counsel's fee was regarded as proportionate and accurate -- which it self-evidently was otherwise he would be paid more -- the balance of the fee above 1500 cannot be proportionate or accurate because it is out of sync with counsel's fees. This is a case, as your Lordship expressed at the outset, were a short point of law arose. Cases had to be read, applied to the facts, my arguments responded to, that required work by counsel, no disrespect, and I would not be making the same submission if Mr Cadman appeared as he so often does as solicitor advocate, but on this occasion he was able to delegate the advocacy by the instruction of counsel. It is not reasonable to duplicate that exercise having paid counsel 1500, not reasonable then to charge several times more than that for the back up process when counsel would hardly needed to have been instructed at all. In terms of drafting instructions one would only need to send him a copy of what I have drafted, with instructions of the broadest and simplest kind, requiring him to draft something in response, at various stages whether that be responding to my grounds, my permission application, or, as today, responding to my substantive argument. So, using counsel's fees as an indication of reasonableness and proportionality, as I submit one should, the solicitors fee should not be out of proportion to the 1,500, I will not say that --
  71. MR JUSTICE FOSKETT: Any objection in principle to me looking just at part 3?
  72. MR MCCARTNEY: My Lord, two short points. One, costs normally follow the event. Secondly, clearly work that was done at an earlier stage is reflected in less work being done at a later stage. So one simply cannot ignore what happened at the acknowledgement of service stage and before, because it meant that it did not have to be repeated. I make that observation. I should make it clear that we submit your Lordship should deal with this today by way of summary assessment.
  73. MR JUSTICE FOSKETT: I am inclined to. It is not in anyone's interests to send it off, the only thing I would say to you, and it is not a point taken against you, is had I gone the other way and you had lost this then I imagine there might have been a few people looking to unwind the adjudications in the past. I imagine that just happens to be a fact, all I am saying is that it would have been in your client's interests to have the matter resolved and this claimant has brought it before the court in circumstances which were perfectly legitimate for her to bring it before the court, and you have derived some benefit from her doing so. The only point is that it should not be at her expense that this issue has been resolved as it has been in your client's interests. Bear that in mind as well. I have in mind ordering -- the total amount is 6700 -- 3,000 as the payable amount to reflect (a) the fact you have that decision in your favour and (b) the fact that you have lost on one of the major arguments that you have raised, which was the question of whether it was amenable to judicial review. If you want to argue more, by all means do so, but that is what I have in mind.
  74. MR MCCARTNEY: Would my Lord forgive me a moment? I am instructed to make no further submissions in the light of the observations my Lord has made. Thank you very much.
  75. MR BEAUMONT: I am sorry, I did not quite catch the figure.
  76. MR JUSTICE FOSKETT: I was going to say 3,000.
  77. MR BEAUMONT: So be it.
  78. MR JUSTICE FOSKETT: Then that will be the order. And I am very grateful to you both for your very helpful written submissions and indeed oral submissions.
  79. MR BEAUMONT: My Lord, I do have an application.
  80. MR JUSTICE FOSKETT: Certainly.
  81. MR BEAUMONT: I have been instructed to apply for permission to appeal to the Court of Appeal. The matter is in my submission one of a degree of importance which almost transcends the case itself. On one level one can say whatever I was complaining about has actually been remedied by subsequent internal reforms, but of course -- and I say this entirely genuinely -- it has only just dawned on me as your Lordship made the remarks a moment ago, that had the decision been the other way others may have come forward asking for their determinations to be, the word your Lordship used was unwound, so there was a degree of general importance, but as far as the point of law is concerned these facts were in my submission unique. We were discussing earlier the idea of a spectrum, and in my submission it was not actually that easy to place this case within that spectrum and the facts, the mere fact, that in the eyes of Elias LJ the matter was reasonably arguable, tends to suggest that even in your Lordship's contemplation, this case may have been somewhere in the middle of that spectrum, possibly as it were towards the end that I would regard as the wrong end, but the point is that it is in my submission a matter of consideration of a novel set of facts applied to well established principles, and the novelty does arise from the inter-relationship between ILEX and the prosecuting corporation.
  82. MR JUSTICE FOSKETT: Well, courteously put, but the answer is no, I am afraid. Undoubtedly Elias LJ thought that the matter was arguable, and I respectfully agree with him, but he was only able to deal with the matter on a relatively cursory examination conducted on paper. Obviously I have had the benefit of sustained argument and decided what I have decided. I am afraid I do not think it is reasonably arguable. If the Court of Appeal takes a different view, you are entitled to apply there.


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