DISCUSSION ON COSTS

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1. Mr Justice Collins: Yes, I do not know whether you have seen the final thing, but I added a very short paragraph, new paragraph 41, in which I said:

2. MR WISE: We have not seen the final version.

3. Mr Justice Collins: I thought it was sensible just to include it. Otherwise, thank you for your various comments. I have not in fact, Mr Sheldon, adopted most of yours. I am persuaded that if you do not like it then you do not like it, but it is not something I am prepared to change at this stage.

4. MR SHELDON: My Lord, thank you for that.

5. MR WISE: With regards to consequential orders, has your Lordship had the note that we have handed up?

6. Mr Justice Collins: Yes, I have. I saw that this morning.

7. MR WISE: Can I apologise for the delay in getting it to you.

8. Mr Justice Collins: Do not worry. I appreciate the time constraints. As you probably appreciate, I cannot do the usual delay in writing, because I shall have no jurisdiction shortly.

9. MR WISE: Absolutely. We are very much aware of that, my Lord. Have you had the chance to read this?

10. Mr Justice Collins: I have. I cannot pretend I read it in great depth, but I read through it. Let us start with the order, shall we? You want a declaration which is rather more focused than that which Mr Sheldon thinks to be appropriate.

11. MR WISE: Does your Lordship have the annex to our note? The one that starts with the draft order we sent on the day.

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12. Mr Justice Collins: Where are we?

13. MR WISE: There was a separate attachment on the email.

14. Mr Justice Collins: I am not sure.

15. MR WISE: Can I pass a copy up to you? (Handed)

16. Mr Justice Collins: I am not sure whether it is a called an annex.

17. MR WISE: I am just passing a copy up, my Lord.

18. Mr Justice Collins: Is this the draft order?

19. MR WISE: There are a number of documents that were attached.

20. Mr Justice Collins: Yes, I do have these. They were not specifically described as an annex.

21. MR WISE: Nothing hangs on that. You can see the terms that we propose at paragraph 2.

22. Mr Justice Collins: Yes. As you know, I have always taken the view that we are in an era when judgments are far too long. I have tried to keep it as short as reasonably possible, which means that, unlike the case for example of Lumba v SSHD [2011] UKSC 12, it is not difficult to see what the case actually decides if people want to.

23. On the other hand, I take your point that it may be desirable often to focus on what the declaratory relief is concerned with.

24. MR WISE: Yes.

25. Mr Justice Collins: I do not honestly think there is a great deal between you in this, other than whether it should be in the detail that you suggest or in the general form. Quite often it is appropriate simply to say a declaration or sometimes a declaration is not needed.

26. MR WISE: It is implicit as it is set out in the judgment absolutely, but this is a case 4where we thought it would be appropriate. It is ultimately a matter for your Lordship.

27. Mr Justice Collins: I suppose one could say that the advantage of the declaration that you seek is it draws attention for those who have any interest to what actually the decision in the case was about.

28. MR WISE: Yes. Although all those of us who are deeply involved in the case will know, for the more casual observer, if I can put it in that way, it would not be as immediately obvious.

29. Mr Justice Collins: And may help the press too.

30. MR WISE: It may. I do not know where they have gone.

31. Mr Justice Collins: Actually, I have a practice of handing out to the press officers who are attached to this building, who I know of course we can entirely trust, in advance so that they have the opportunity to make a proper note rather than a last minute scramble sometimes by journalists who are not very good at identifying what the case is about. I have suggested to my brethren that it might be a good idea if they follow that example.

32. MR WISE: Yes. There is a lot of trust of course in that.

33. Mr Justice Collins: I was going to say, Mr Sheldon, do you have strong feelings about this?

34. MR SHELDON: My Lord, only in so far as we do not think it is necessary for you to go beyond what we have already suggested. That is the normal practice.

35. Mr Justice Collins: Well, it varies. As I say, it depends.

36. MR SHELDON: It was the practice in the two cases that we referred to. You have our submissions.

37. Mr Justice Collins: In R (Hurley) v SSWP [2016] PTSR 636 I gave a judgment in that form, but of course essentially the parties agreed that that was the appropriate form. 5Well, you agreed.

38. MR SHELDON: We certainly did agree. My Lord, we have set out our proposed course of action. We do take issue. We say it is not appropriate to do what is requested by the claimants.

39. Mr Justice Collins: It is not a question of it being appropriate. It is a question of whether it is necessary, I think.

40. MR SHELDON: We say it is not necessary. What is necessary is you have written a judgment which sets out your reasoning.

41. Mr Justice Collins: That is so. Do you have any objection, assuming I was in favour of Mr Wise, to the form that he seeks or the wording that he seeks?

42. MR SHELDON: The only wording that I would seek too correct or add is in 2(b). We are looking at their draft. I do not think it should read “contrary to Article 14 read with Article 8 and Article 3 of the UNCRC”. We would say “and in light of Article 3 of the UNCRC.”

43. Mr Justice Collins: Yes, I think that is probably correct.

44. MR WISE: We are happy with that, my Lord.

45. Mr Justice Collins: If I am going to make a declaration, “read with Article 8 …”

46. MR WISE: Delete the “and” and insert “in light of”. We are quite happy with that, my Lord. With regards to necessary, we think it is necessary so people are clear as to what exactly the outcome is.

47. Mr Justice Collins: I can see that in the circumstances it could be said to be desirable. I do not think there is anything really between you. I am content, Mr Wise, to grant the declarations in the form you want with that small amendment.

48. MR WISE: I am obliged, my Lord. We will of course draft up the final order.

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49. Mr Justice Collins: Yes, of course.

50. MR WISE: The next bone of contention your Lordship sees —

51. Mr Justice Collins: Leave to appeal.

52. MR WISE: Well, we were going to come on to payment on account, but we can do leave to appeal. I am entirely in your Lordship's hands with which way we deal with it.

53. Mr Justice Collins: Let us deal with that now.

54. MR WISE: Leave to appeal?

55. Mr Justice Collins: Yes. You have two points, as I understand it. You say there should not be leave to appeal, but if it is it should be a leapfrog. So far as a leapfrog is concerned, correct me if I am wrong, I forget to recheck this, I cannot leapfrog unless there is consent, can I?

56. MR SHELDON: The law has changed. There is no longer a requirement for consent.

57. Mr Justice Collins: I am so far out of date.

58. MR SHELDON: Relevant for the matter that has come before you for the leapfrog in the last year or so you do not need consent although we —

59. MR WISE: Just before you do that, can I just remind your Lordship that the short bundle with the proposed draft order has the relevant section of the Administration of Justice Act at the back.

60. Mr Justice Collins: Yes.

61. MR WISE: Sorry. I was interjecting.

62. Mr Justice Collins: It has to be, does it not, a point of construction?

63. MR WISE: Your Lordship is at subsection 3 at the bottom of the page. A point of law of general importance is involved. That is plainly met in that decision. The point of law either (1) relates wholly or mainly to a construction of a statutory instrument. We say 7that applies here. Or (2) is one in respect of which the judge is bound by a decision of the Court of Appeal.

64. Mr Justice Collins: That does not apply, does it?

65. MR WISE: You were not, but the Court of Appeal —

66. Mr Justice Collins: I am not bound.

67. MR WISE: Anyway, we comply with those provisions, but our primary position is that the law is clear in the light of R (SG and others) v SSWP [2015] and R (MA) v SSWP [2014] PTSR 584. Your Lordship has merely followed the jurisprudence of the higher courts and, in those circumstances, permission to —

68. Mr Justice Collins: I think Mr Sheldon would say the law is clear against you.

69. MR WISE: The law is clear in favour of these claimants in the sense that your Lordship has set out.

70. Mr Justice Collins: That is the question.

71. MR WISE: Again, a matter for your Lordship's discretion.

72. Mr Justice Collins: I do not think, Mr Wise, that if I were to grant leave to appeal this is an appropriate case for the leapfrog. It is open to the Court of Appeal to decide either way. I appreciate that this could, assuming there were an appeal, give rise to further time.

73. MR WISE: Can I make an additional point, my Lord?

74. Mr Justice Collins: The law is as I have made it. The law will be as I have made it to be until it is changed.

75. MR WISE: Of course. On a purely pragmatic level, leave aside the legal niceties for one moment, if the Secretary of State does seek to pursue an appeal in this case and it goes to the Court of Appeal and if we succeed in the Court of Appeal, they will inevitably take it 8to the Supreme Court in any event.

76. Mr Justice Collins: Not necessarily.

77. MR WISE: Being pragmatic.

78. Mr Justice Collins: Remember this is to an extent something of a political issue. It may well be that those now responsible in government could see that the effect of this cap on these particular claimants creates a lot of hardship, there is no question about it, and to no good purpose.

79. MR WISE: Yes.

80. Mr Justice Collins: Because they are not people who are normally expected to have to work. The suggestion that there are alternative benefits that they can claim makes something of a nonsense of the benefit cap approach.

81. MR WISE: That was why I caveated what I said by saying “If they do speak permission to appeal,” because there may well be a political decision not to pursue that.

82. Mr Justice Collins: They did not in Hurley, because they recognised that there was an oversight in the way it had been dealt with.

83. MR WISE: But, nevertheless, if they do —

84. Mr Justice Collins: I will express the profound hope that upon consideration of this they appreciate that it really is not necessary. Who is the present Secretary of State?

85. MR SHELDON: David Gork has just assumed the position of Secretary of State.

86. Mr Justice Collins: Anyway, they are going to have to reconsider, are they not?

87. MR WISE: Yes.

88. Mr Justice Collins: If they wish to appeal, that is a matter for them. There is nothing I can do about that.

89. MR WISE: Just taking this in stages, I can see your Lordship is inclined to grant 9a certificate, but that was always predicated on whether you grant permission to appeal in the first place of course.

90. Mr Justice Collins: I am bound to say, I am afraid, that I think I ought to grant leave to appeal, because there are issues which have been raised. There is SG. I have had to an extent to distinguish the approach.

91. As it happens, I saw Lord Carnwath yesterday. There was a reception in the Supreme Court for Lord Mackay's ninetieth birthday. The only reason I went was because they invited those still in post who had been appointed by him. I think I am one of the very few.

92. MR WISE: Those in post. That would be very few indeed then, would it not?

93. Mr Justice Collins: There are I think four in the Court of Appeal or in the High Court.

94. MR WISE: I am just trying to think who they would be.

95. Your Lordship has a clear view on that I think.

96. Mr Justice Collins: I am afraid, Mr Wise, that I think that I ought to grant leave to appeal. I am not prepared to certify in the circumstances of this case.

97. MR WISE: Very well.

98. Mr Justice Collins: That just leaves costs.

99. MR WISE: That leaves costs. Of course the defendants have accepted, as they are bound to do.

100. Mr Justice Collins: You will receive the usual order. There is no issue about that. The only question is interim payment.

101. MR WISE: Yes, payment on account. Has your Lordship had the opportunity to read the passage in the document that deals with this?

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102. Mr Justice Collins: Yes, but only quickly so perhaps you better redirected me to it.

103. MR WISE: It starts at page 5.

104. Mr Justice Collins: Yes. This is payment on account. Shall I just re-read it?

105. MR WISE: I think that will be helpful, my Lord.

106. Mr Justice Collins: Where do I need to read to? 15 through to 27, is it?

107. MR WISE: Yes, my Lord. Can I invite you to read that.

108. Mr Justice Collins: I will indeed.

109. I am interested in your suggestion that it would have been longer than two days, but for the need for urgency. I really do not think there is anything in that, Mr Wise. That rather suggests the full arguments were not properly taken into account.

110. MR WISE: That is a very minor part of the case.

111. Mr Justice Collins: I think that is rather a bad point. At least I hope that it is rather a bad point.

112. MR WISE: I do not think we need to worry too much about that. Your Lordship sees the principle.

113. Mr Justice Collins: I mean the difficulty of course one is in is that many of the issues raised of course will be dealt with on detailed assessment in due course.

114. MR WISE: Of course. Your Lordship is not required to do a summary assessment.

115. Mr Justice Collins: It is not for me. It is inevitably a broad-brush approach at this stage, is it not?

116. MR WISE: Yes. You can see our starting point with what the approved legal aid costs were and you can see what they were. As you know, for these case plans for high cost cases they are very rigorously assessed and the lawyers have to justify literally every hour, literally every minute, frankly, certainly every quarter of an hour that goes into the case 11plan.

117. Mr Justice Collins: Yes.

118. MR WISE: The case plan itself is £112,000. That is in addition to the original £25,000 of expenditure before one goes on to a case plan. You can see from the note that the case plan inter partes rates are generally at least three times, possibly four times, as much as legal aid rates.

119. Mr Justice Collins: Yes.

120. MR WISE: The presumption with case plans of course is that there is a risk taken. Those rates are called “risk rates”. In those circumstances, lawyers take that risk of what effectively is not an economic rate. It is perhaps different for counsel, but solicitors certainly cannot keep the lights on without there being inter partes orders in at least a significant proportion of legally-aided cases.

121. Mr Justice Collins: Mr Wise, can I put you on the spot perhaps?

122. MR WISE: Yes.

123. Mr Justice Collins: Can I ask you what you would regard as the minimum amount which is reasonable. I appreciate what you are asking for.

124. MR WISE: I am just coming to that. As you have perhaps gathered from the note, I was in court in the Court of Appeal yesterday and the day before and my junior has been dealing with a lot of the negotiations with I think Mr Pritchard. We suggested on a counsel-to-counsel basis that we would settle for £150 plus VAT, which is closer to their offer than our proposal.

125. Mr Justice Collins: I confess that, funnily enough, that is the figure that I had slightly in mind.

126. MR WISE: Yes. We are content if your Lordship is.

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127. Mr Justice Collins: Let us see what Mr Sheldon has to say. I will come back to you if necessary.

128. MR SHELDON: My Lord, you will have had our submissions already on this point. Really we make two points, although we do accept that this is a case where it is appropriate to make some payment on account. They are not circumstances where there should not be any payment at all, but there are two, we say, important points to bear in mind.

129. One is we say that the sum being claimed for is wholly disproportionate. Actually, we have said in correspondence it is quite a remarkable sum for a two-day judicial review hearing, especially when the legal arguments are essentially a rehearsal or a repeat of arguments which counsel have argued either in SG or in Hurley. We say the amount of time spent and the costs that are associated with that, the hourly rates, just seem remarkable. Secondly, bearing in mind that the matter is going on appeal —

130. Mr Justice Collins: Well, it may or may not.

131. MR SHELDON: Well, permission has been granted.

132. Mr Justice Collins: It does not mean it will be. You have to take your instructions.

133. MR SHELDON: If the matter is going on appeal, my Lord, then there is a risk to the government, if they are successful on that, of not being able to recover monies which are well in excess of what the legal aid would be and that would be a concern.

134. If the matter is not going on appeal, my Lord, then detailed assessment will take place and will take a matter of a month or two. Really what is being asked for is money on account of what they might get on detailed assessment.

135. Mr Justice Collins: It is evident to me you have leave of appeal on the basis that you pay the costs in any event.

136. MR SHELDON: My Lord, my understanding is that you have already made an order or 13you have indicated that you are making an order that you will grant permission to appeal.

137. Mr Justice Collins: I have not indicated the basis upon which necessarily. I have not been asked to do that, but it is a power that the court has in an appropriate case where you will have individual claimants who are affected by something which has a much broader impact and it is the defendant who has the wider interest in dealing with it. It is that sort of case in which a court thinks possibly in terms of the interested party who has the wider interest having to pay the cost win or lose on appeal.

138. MR WISE: My Lord, if we reach that stage —

139. Mr Justice Collins: I appreciate what you say about recovery, but these are reputable solicitors. If they are overpaid, it may be that they would recognise that.

140. MR SHELDON: The first point is about the size of the bill. This was a two-day hearing, my Lord. What is being suggested from the documentation, of course we have not seen detailed cost schedules or even a cost schedule —

141. Mr Justice Collins: This is the problem you have.

142. MR SHELDON: — but we have an estimate that the claimants' solicitor spent 650 hours on this case and the combined time of the three counsels involved in this case is over 700 hours for a two-day hearing.

143. Mr Justice Collins: You say for a two-day hearing, but it is the preparation.

144. MR SHELDON: I appreciate, my Lord, the preparation, but this was not a commercial trial with an enormous amount of witness evidence to prepare. There was witness evidence, but it is relatively light witness evidence. The legal arguments had already been thought through in two other cases. We do find it remarkable.

145. Then you look at the rates, my Lord. Without going into the details of my learned friend in any great way, he is asking for £475 an hour, which is more than any public sector body 14would pay any counsel whether claimant or defendant.

146. Mr Justice Collins: You speak with feeling.

147. MR SHELDON: I speak with experience, my Lord.

148. Mr Justice Collins: I have been in your shoes in the past.

149. MR SHELDON: It is a rate which is not just three times more than the legal aid rate or four times more than the legal aid rate. It is five times more than the legal aid rate. This is not a situation where one can just pick a number and say that is what I would like to be paid for these matters.

150. Taking into account all of these matters, one, we say it is a disproportionate amount. Two, we are good for the money. It is not as if we are going away. Therefore, if it turns out on a detailed assessment that more money is required and that will only take a couple of months, my Lord. It is about keeping them out of pocket for certain amounts of money for a couple of months. We are good for that. We say the figure that we have put forward of £100,000, which is inclusive of VAT, is entirely appropriate.

151. Otherwise, my Lord, you are suggesting that they are entitled to something which is much more than the legal aid rate. There is a risk on recovery.

152. Mr Justice Collins: There are reasons why it would not necessarily be tied to the legal aid rate, but I take your point.

153. MR WISE: My learned friend has said twice that we will be paid on detailed assessment within two months. In my 25 years at the Bar, I have never been paid within two months on a detailed assessment.

154. Mr Justice Collins: Particularly when you are coming up to August.

155. MR WISE: The truth is that it would take in excess of two years.

156. Mr Justice Collins: I hope not.

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157. MR WISE: Very much so. Sometimes three or four years. Yes, absolutely. It would be rare to get paid on a case like this in less than two years and it is because of those problems —

158. Mr Justice Collins: Things have changed.

159. MR WISE: Things have changed because people fight costs in a much more vigorous way now than they did do hitherto, but it is because of those problems that the CPR rules were introduced for payment on account so basically people were not waiting for years while the arguments carried on about assessments.

160. Mr Justice Collins: I do not think I can make any assumptions. I have to assume that it ought to be done within a reasonable time.

161. MR WISE: My learned friend threw two months into the air.

162. Mr Justice Collins: Let us say by the end of the year.

163. MR WISE: It just will not happen, my Lord. It is inconceivable that there will be a detailed assessment and payment.

164. Mr Justice Collins: What you are going to do is to produce your detailed figures. You have not done that yet. You have given an overview idea. You will produce your detailed figures. They will then consider them and no doubt take the view that they are too much, but it might persuade them that a little more should be —

165. MR WISE: What will happen in truth, and what inevitably happens in these cases, is there will be points of dispute. Every little point will be taken about whether you should pay the taxi fair to court or whatever. These schedules go on for 50/60-odd pages in cases like this.

166. Anyway, can we get back to the initial principle. The point is we are not on a summary assessment. We are not seeking the full amount. We are seeking what is a reasonable 16sum, which is the term in the rules. We say that certainly £150,000 is a reasonable sum. The rates that were being discussed are in the legal aid schedules risk rates. Inter partes rates are what they are. Obviously, that can be subject to negotiation.

167. I doubt if my inter partes rate is any different than my learned friend's inter partes rate frankly, but that is not a matter for your Lordship today. Plainly, an inter partes assessment will be —

168. Mr Justice Collins: Sometimes seeing these figures I regret having left the Bar.

169. MR WISE: Yes. Having a predominantly legal aid practice, my Lord, obviously, most of what we do as a team is at legal aid rates.

170. Mr Justice Collins: You and I have done work as a team in the past.

171. MR WISE: We have, yes. The legal aid rates, for example, for a silk were £250 an hour. They were reduced to £180 a few years ago. When my learned friend says what we are seeking is four or five times as much, that is just simply not the case. That is all by the by.

172. Your Lordship was quite correct earlier when he said what the task of the court today is is to take a broad-brush approach just looking at it reasonably. I am sure that is the approach that your Lordship will take. Taking a broad-brush approach, you will see that they offered £100,000, which included VAT, which comes to £83,000 plus VAT. We reduced our claim to £150,000, which are risk rates plus less than 50 per cent risk rates.

173. Mr Justice Collins: What is the VAT rate now?

174. MR WISE: 20 per cent. If the legal aid approvals were at 137 or thereabouts, that is with the £25,112, then actually £150,000 is only just above what is approved by the Legal Aid Agency. That is a very modest uplift, we would say, from the legal aid rates.

175. The usual approach that the courts have taken, and I have been in this situation a few times, in a legal aid cases where an inter partes order has been made is that they will at least 17double or triple the legal aid bill. We are not asking for that, because this is an extraordinarily big bill. My learned friend is quite right about that. This is well out of the norm. Normally you would look at a considerably smaller sum, but, bearing all those matters on account, we would say £150 plus VAT is very much a reasonable sum.

176. Mr Justice Collins: Thank you.

177. No doubt I will be accused of doing what Forbes J in the past used to do when one had a claim for damages, which was to split the two suggestions. It is a very difficult task when one does not really know the full details. I appreciate this was only a two-day case. It was a case which was argued within two days, but there was a very considerable amount of documentation which was produced. Obviously, it needed a day reading so far as the court was concerned. Much of the work was obviously carried out in obtaining a lot of the evidence which had to be produced in order to establish the situation with regards to these claimants.

178. It is not possible to give any detailed reasons on the figure approached for obvious reasons, because I do not know the full details. I have not seen any full schedule. They are high sums, but that is not entirely surprising.

179. What I am proposing to do is to fix a figure for interim payment or payment on account, however one describes it, of £125,000.

180. MR WISE: Plus VAT. £125,000 plus VAT.

181. Mr Justice Collins: Yes.

182. MR WISE: I am obliged for that, my Lord. Is that to be paid within 14 days of today? That is the usual order.

183. MR SHELDON: My Lord, they can pay within 14 days.

184. Mr Justice Collins: In that case, yes.

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185. MR WISE: There is one final matter, which I would hope would not have been controversial but apparently is. I raised it with my learned friend a moment before your Lordship came into court. It is the sort of detail that can be overlooked, but if there is an appeal in this case it may become important. You may recall that there was an application notice to admit further evidence in this case.

186. Mr Justice Collins: That was your expert witness's evidence.

187. MR WISE: Can I just pass this up? My junior knocked this up this morning so it is not a formal order. The application notices are the bundle references. (Handed)

188. Mr Justice Collins: The additional statements from the claimants there was no problem about.

189. MR WISE: Most of them your Lordship refers to in the judgment in any event.

190. Mr Justice Collins: Yes, exactly.

191. MR WISE: That is far from determinative anyway. It is just whether they are referred to.

192. Mr Justice Collins: Mr Sheldon, what is your position on this?

193. MR SHELDON: My Lord may recall at the outset of the hearing we had a discussion about the statement. You decided you may look at things de bene esse. Our position is to the extent that you referred to a statement in your judgment and, therefore, relied on it in arriving at your conclusion and dealing with your reasoning then we have not objection, but several of these do not feature at all in your judgment. We say, therefore, it would be inappropriate for them to be included.

194. Mr Justice Collins: I think they were all reasonably obtained for the purpose of the case.

195. MR SHELDON: My Lord, you may recall some of them were described as expert reports when in fact they were not actually expert reports and there was no need for an expert 19report. We say they ought not to be admitted on that basis.

196. Mr Justice Collins: They all made points. Even if I did not refer to them specifically, I think I obviously had read them and took them into account. I think that in the circumstances I am satisfied that it is appropriate to have allowed that they be admitted. I appreciate that I dealt with them de bene esse, whatever that means, at the outset, but I will not say any more.

197. MR SHELDON: If you are extending for these purposes, will you also grant an extension for our response evidence to this?

198. Mr Justice Collins: Yes, of course.

199. MR SHELDON: Maybe we need to amend the order.

200. MR WISE: We have no objection to that, my Lord. That is understood, my Lord. I mean hopefully commonsense will prevail and the matter will go no further and it will not be an issue, but we will see. You understand why we want to protect our position just in case it does go further. We will incorporate that into the draft as well. I do not think there are any other matters.

201. MR SHELDON: I do have one further matter which is actually about the costs of today. We actually ask for there be no order as to costs of today. It is only on the hearing today. We were quite content for the matter to be dealt with in writing.

202. Mr Justice Collins: There were issues which I needed to decide. I was with you on some and not on others.

203. MR SHELDON: Which is why I am asking for no order as to costs as opposed to seeking our costs.

204. Mr Justice Collins: I do not suppose this will make a great deal of difference to the overall costs.

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205. MR SHELDON: It depends on the inter partes rates that might be accepted by the cost examiner.

206. Mr Justice Collins: He is making a fair point.

207. MR WISE: I think not, my Lord. No, we have substantially succeeded. You saw from the note that we tried to negotiate on this literally within hours of the draft judgment coming out.

208. Mr Justice Collins: The only matter I suppose that you would have gone to the wall on was the cost.

209. MR WISE: The declarations as well.

210. Mr Justice Collins: No. I do not think they would have been too worried about the declarations.

211. MR WISE: But there was a dispute. It meant that we had to attend. We did everything we could.

212. Mr Justice Collins: You say that this would be part of the costs in the case.

213. MR WISE: I am obliged.

214. Mr Justice Collins: No. That is what you are arguing.

215. MR WISE: Absolutely. Sorry. I did not hear you.

216. Mr Justice Collins: My fault.

217. MR SHELDON: We ask you not to make that order. We are not here just about the costs. We are here about permission to appeal. They sought to object to that.

218. Mr Justice Collins: That is true.

219. MR SHELDON: We are grateful that you have acceded to our application in respect of that. In terms of the payment on account, they asked for £250,000 plus VAT. They got half of that. They were offered an amount which is much nearer to that than their original 21position.

220. Mr Justice Collins: Fair point.

221. MR WISE: On that, my Lord, if I can just come back on that payment on account. We moved our position yesterday in an attempt to negotiate it even before court this morning as well. The other side were adamant that they would not budge from the £82,000. In those circumstances, we were driven to come to court.

222. MR SHELDON: That is not actually correct. I said to my learned friend if you reduce the amount that you are asking for then maybe we will be in a position to take instructions.

223. Mr Justice Collins: I am not obviously going to go into that aspect. I think there is an element of some you lose, some you win on this. I am prepared to give this to Mr Sheldon, Mr Wise. I make no order for today's costs.

224. MR WISE: Legal aid assessment we will obviously need.

225. Mr Justice Collins: Of course. That goes without saying.

226. MR WISE: I think that deals with everything.

227. Mr Justice Collins: Okay. Thank you both.

228. MR WISE: My Lord, before you rise, I anticipate this is probably the last time that I will see you in court.

229. Mr Justice Collins: I think it certainly is. I am sitting on Tuesday, but that would be my last sitting.

230. MR WISE: Obviously, I have had the pleasure of being in front of you on numerous occasions over the last 25 years. I just wanted to extend my personal thanks to your Lordship, and I am sure that many of my colleagues at the Bar and others sitting behind me would also want to concur with that, for the courtesy that you have shown all court users, not just lawyers, but staff and litigants and witnesses and so on, which has 22been very greatly appreciated over an extended period of time.

231. Also, to particularly thank you for the integrity and independence that you have brought to your judgments. We have seen today that you are not one-sided. Sometimes you go one way. Sometimes another. One thing that has shone through is that integrity and independence for which we are very grateful. We say that is a great example to others who sit at the bench and others generally.

232. We would like to thank you for what you have done over the last 25 years, I think, it is now.

233. Mr Justice Collins: 23.

234. MR WISE: Very nearly 25 and wish you a long and happy retirement.

235. Mr Justice Collins: Thank you. Thank you very much, Mr Wise, for those kind words. I said earlier today of course you and I at the Bar had time together in a number of cases, I think.

236. MR WISE: We did, yes. Your penultimate case at the bar I think you led me on.

237. Mr Justice Collins: I had forgotten that.

238. MR WISE: In the Court of Appeal. 1994.

239. Mr Justice Collins: You win some. You lose some.

240. MR WISE: No, we won that.

241. Mr Justice Collins: Sometimes.

242. MR SHELDON: My Lord, he remembers his victories.

243. MR WISE: Well, I will remember this one.

244. I do wish you a long and happy retirement.

245. MR WISE: Thank you very much, Mr Wise, for those kind words.