R (BA) v LB Hillingdon  EWHC 3050 (Admin),  MHLO 148
"This is a claim for interim relief brought on behalf of BA by his litigation friend, the official solicitor, against the London Borough of Hillingdon and Hillingdon National Health Service Primary Care Trust. The relief sought is first, an order that the claimant be provided with community care services under section 117 of the Mental Health Act 1983 against both defendants and/or section 21 of the National Assistance Act 1948 against the first defendant, and secondly an order that the defendants jointly carry out assessments of his need of community care services under section 47 of the National Health Service and Community Care Act 1990."
CO/1305/2012 Neutral Citation Number:  EWHC 3050 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Royal Courts of Justice Strand London WC2A 2LL Tuesday, 26 June 2012 B e f o r e: MR JUSTICE SIMON Between: THE QUEEN ON THE APPLICATION OF BA Claimant v LONDON BOROUGH OF HILLINGDON Defendant Computer‑Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) Mr T Buley (instructed by Bhatt Murphy) appeared on behalf of the Claimant Miss P Etieber (instructed by Hillingdon Legal Services) appeared on behalf of the Defendant Mr P Patel (instructed by Capsticks) appeared on behalf of the Interested Party. J U D G M E N T (As Approved by the Court) Crown copyright© 1. MR JUSTICE SIMON: This is a claim for interim relief brought on behalf of BA by his litigation friend, the official solicitor, against the London Borough of Hillingdon and Hillingdon National Health Service Primary Care Trust. The relief sought is first, an order that the claimant be provided with community care services under section 117 of the Mental Health Act 1983 ("the MHA") against both defendants and/or section 21 of the National Assistance Act 1948 ("the NAA") against the first defendant, and secondly an order that the defendants jointly carry out assessments of his need of community care services under section 47 of the National Health Service and Community Care Act 1990 ("the NHSCCA"). 2. By way of background, before the defendants became involved in this case, the claimant was held in dual detention under the Immigration Act 1971 ("the IA") and the MHA. On 6 August 2011, he was transferred from Harmondsworth Removal Centre to Colne Ward under section 48 and 49 of the MHA for treatment. On 27 September 2011, a discharge summary was prepared in relation to his release from Colne Ward by a consulting psychiatrist, Dr Shirokar. A care Programme Approach meeting had been held on 21 September 2011. 3. In relation to that, Mr Buley has pointed out that there seems to have been a measure of agreement as to what was required. The list of attendees included the claimant, Dr Shirokar, another doctor, a psychiatric nurse from Harmondsworth, two probation officers and Mr Pennington of Bhatt Murphy, BA's solicitor. Amongst the points noted was a need in the long term for psychological treatment to enable BA "to come to terms with the trauma of the events that led to imprisonment, as well as the imprisonment itself. Medication has its limitation and can lift mood, but it cannot undo what has happened." Then it continues, "on the basis of BA's presentation now that he has been on the unit, we are not classifying him as psychotic." 4. They then go on to say that he is ready for psychological treatment. Later on, it is stated by one of the participants in the meeting "that if BA is provided with NASS accommodation, the ward will make a referral to the local community mental health team who will be obliged to provide the treatment BA requires as any other support they consider he requires as a result of his mental health problem." Later on, Dr Shirokar says this: "In their view, BA needs support in relation to his mental illness, not in support to his daily living needs." 5. Later on, it is observed that BA "would be extremely vulnerable in a bail hostel. They strongly recommend he is allocated residential accommodation." In the event, he was discharged to Harmondsworth and not to a bail hostel. In the summary report of 27 September which followed on from that discussion and the meeting, Dr Shirokar said this by reference to 21 September: 6. "A discharge CPA, that is to say, a care programme approach, was organised on Colne Ward and attended by...", and then she sets out the various people who were there. Dr Shirokar gave an overview of the reasons for admission: "Currently he has improved in his mental state, eating and drinking quite well and participating in all therapeutic activities on the ward. He has been given a diagnosis of adjustment disorder, ICD10, code F43.2, in view of the psychological and life‑changing impact of being convicted and sentenced to 10 years in imprisonment with a potential threat of deportation to Nigeria. There is no evidence of any persistent depressed mood, hedonia, sleep disturbance or gross psychotic symptoms, although he has from time to time subjectively complained of 'hearing voices and seeing demons'. He has also expressed a fear that the demons will harm him, but that he believes that there is a psychological element to some of these thoughts. BA told the team that the prison environment is not best for his mental health and he would rather be discharged in the community. Mr Nazir, a probation officer, said that his probation licence is due to continue until 2015 and that BA would need strong advocacy to get him bail." That is the reference, I think, to immigration bail. 7. On 6 October 2011, he was discharged from MHA detention and transferred back to immigration detention. On 7 October, Elizabeth Laing QC sitting as a single judge at this court made an order for his immediate release from immigration detention. In a subsequent judgment, R(BA) v Secretary of State for the Home Department  EWHC 2748 (Admin), she held that he had been unlawfully detained under immigration powers since 21 June and that due to his severe mental illness, the conditions of his detention between 4 July and 6 August had been contrary to his rights under article 3 of the ECHR. 8. On 10 October, the claimant was released into the community as he had wished, to National Asylum Support Service ("NASS") accommodation. It appears that he was not happy with this accommodation and his solicitors were concerned that no assessment of his needs had been carried out. At the beginning of January 2012, he was found by the; police and was referred to hospital as a result of his "bizarre behaviour" in public places. 9. On 6 February, the present claim was commenced, challenging the failure of the defendants to carry out assessments under section 47 of the NHSCCA. On 21 February the matter came before Sales J, when the defendants agreed first, to conduct a full assessment of the claimant's needs for aftercare and/or community care services by 28 February, and secondly to provide the claimant's solicitor with a copy of the assessment as soon as practical after its completion. It seems that the assessment was actually carried out on 1 March. 10. Those carrying out the assessment encountered an immediate difficulty which is referred to at the first page of the report. The claimant refused either to reply to questions or despite helpful suggestions to contact his pastor, to engage to any significant extent with the assessment. The writers of the report said his refusal to speak could suggest a continuing mental disorder or could be due to reasons not related to his mental health. This view reflected a difference of opinion which endures. 11. For the claimant, it is submitted that since the assessment seems to have been carried out without any apparent awareness of his medical history before 2012, it is flawed. 12. In any event, on 25 April, the first defendant indicated that it was going to carry out a further assessment involving Ms Wiafe‑Ababio (an approved mental health professional employed by the first defendant), who had been begun one of those who had tried to carry out the assessment on 1 March, and Dr Bain, a consultant psychiatrist. Dr Bain had seen the claimant on 24 April and in a report dated on 30 April, she had concluded that although he had suffered a psychotic episode in 2008/2009, the recent hospital assessments and reassessments found no evidence of severe mental illness (in other words, paranoid schizophrenia), and that the preferred diagnosis was an adjustment disorder, ICD‑10 F43.23. She recommended continuing the antidepressant medication, fluoxetine, but a phased reduction of his antipsychotic medication. The diagnosis of adjustment disorder was the same as had been made in September 2011 by Dr Shirokar who considered that the condition was the result of the impact of a 10‑year sentence of imprisonment for drug importation and the threat of deportation to Nigeria. Miss Wiafe‑Ababio's assessment, also of 24 April, concluded that the claimant was in receipt of primary care and was currently well. In her view, there was no need for secondary care. 13. In the meantime, the claimant's solicitors had engaged their own consultant psychiatrist, Dr Vermulen, to carry out an assessment. In his report of 14 May, he reviewed a number of prior diagnoses and on the basis of these and his own examination concluded that the claimant was suffering from a severe and continuing mental illness satisfying DSM‑IV and ICD‑10 criteria for paranoid schizophrenia. This was consistent with a diagnosis made by Dr Agulnick, in a report dated 10 February 2012, of a schizotypal disorder as defined by ICD‑10 F21. The defendants then asked for time to consider Dr Vermeulen's report. 14. On 17 May, the defendants posed a number of number of questions to Dr Felton who had seen the claimant in January and February when he was an in‑patient, and who had looked at reports of his behaviour, and at medical and nursing notes at the time. In Dr Felton's view, the claimant was highly intelligent. His presentation was deliberately variable depending on who was watching him. He was deliberately mute and there was no sign of mental disorder. 15. I turn from that background to the statutory framework. There is no dispute about this. By section 112 of the MHA: "It shall be the duty of the primary care trust... and of the local social services authority to provide... aftercare services for any person to whom this section applies until such time as the primary care trust and the social services authority are satisfied that the person is no longer in need of such services." It is not in issue that the section applies to the claimant. "Aftercare services" may include accommodation. 16. The relevant codes of practice, published by the Secretary of State for Health under section 118 of the MHA, makes it clear that there may be a need for a broader range of aftercare services and that even when a patient is well settled in the community, there may be a continuing need for aftercare services to prevent relapse. See for example paragraph 27.21. 17. Mr Buley for the claimant referred to a number of other provisions of the code and the local code, and submitted that there has been a breach of the obligation to provide a care plan which meets to the claimant's needs under section 117. This is disputed by the defendants, though in terms anomalously in which they rely on the care plan, but not the same care plan. 18. Section 47(1) of the NHSCCA imposes a duty on the local authorities to carry out an assessment of an individual's need for community care services. This includes both the obligation under section 117 of the MHA and section 21 of the NAA with its obligation to house those "who are in need of care and attention". By section 47(1)(b), the local authority shall decide, having regard to that assessment, whether individual needs call for the provision by them of such services. Miss Etieber also draws my attention to section 47(5) which provides that the council can provide services urgently in cases of need. 19. For the claimant, Mr Buley submits that the defendants have failed and continued to fail to discharge their obligations under section 117. The only relevant meeting was the discharge meeting on 21 September. There has been no appropriate consideration of the claimant's needs and no clear plan as required by section 117 and the codes. To the extent that the defendants rely on the 1 March assessment, he submits that that is defective since it appears to have been made without any understanding of the claimant's prior medical condition. The defendants have acted unlawfully in failing to provide the services which a proper care plan should have provided for. 20. He also submits that the defendant has failed to comply with its obligation under section 21 of the NAA, by which the local authority is under an obligation to provide accommodation to persons who are "in need of care and attention", and that this overrides any duty to accommodate by NASS. I should add that this did not form the prominent part of his submission; and Miss Etieber submitted that there was no urgent need in any event and no requirement in relation to his daily living needs. The argument, as it was developed, tended to revolve around the obligation under section 117 and section 47. Mr Buley submitted that if the defendants had acted lawfully, there was a powerful case that they would have provided a number of services which are the subject of the application; and for this reason he initially submitted the court should make the order requiring the first defendant to disclose its full assessment forthwith, although he drew back from that since it emerged that there was no assessment beyond what had been disclosed. He nevertheless urged the court to direct the defendant to provide suitable supported accommodation, the appointment of a care coordinator, and support and monitoring to ensure the claimant's compliance with medication, and consumption of food and fluid. 21. Miss Etieber for the first defendant, Mr Patel for the second defendant, submitted in summary that the local authority had carried out its community obligations on 1 March. However the section 47 assessment was a continuing care assessment which was subject to review and adaptive response. The ongoing review is not complete and is bound to take into account the recently expressed views of Dr Felton and Dr Shirokar, who does not believe that the claimant is suffering from a severe mental disorder, as well as the other recent reports and expressions of a contrary view to which reference has been made. The submission that the defendant is bound to take into account the views of Dr Shirokar was somewhat tentatively advancved since it appears that Dr Shirokar has not in fact formed a view about the matter. She has agreed to part of Miss Etieber's skeleton argument, but nothing has been put in writing. 22. It is also submitted that there is no immediate need for interim services and that, in any event, such a view is not irrational. On the contrary, the claimant is not destitute. He has accomodation and subsistence money from NASS. There is a body of medical and other expert opinion that the claimant does not need community care and/or care services; and so far as diagnosis is concerned, the defendants were entitled to prefer the view of Drs Felton, Shirokar and Bain as to his current condition and to conclude that the claimant may present differently depending on who is observing him. 23. I have taken into account these arguments as they were developed in the course of the day. The first question is whether the claimant requires aftercare community services and not whether he suffers from a mental disorder or what that disorder may be. The duties under section 117 of the MHA, including the duty to make the relevant decisions, and the duties under section 47 of the NHSCCA, including the decision as to an individual's needs for community services, are placed clearly on the defendants. 24. The court's involvement in the process is confined to a function of review on conventional public law grounds. The court should not be invited to substitute its own views of the matter for the views of those expressly charged with the statutory duties. Of course they are obliged to carry out those statutory duties and court is there to ensure in the appropriate case that they do so. 25. The first question then is whether there is a serious issue to be tried, that the defendant's approach has been unlawful or irrational. There will plainly be issues at trial should the matter come to trial, as one hopes that it will not, as to whether the defendant is in breach of its duties and whether the claimant will be shown to be in need of community care. The claimant has a half decent argument, if I can put it in that way, that the 27 September plan is not a care plan. The defendants are not a party to it and it was not intended to apply to a person about to be released in the community. 26. The defendants can also be criticised for delays. It can be argued that they should have attached more weight to the very long report of Dr Vermeulen, but there are on the other hand a large number of differing medical assessments of the claimant. The older assessment suggests that he has suffered from a severe mental illness. The newer one suggests that if he ever did, he no longer does so. However, ultimately the question is not one of diagnosis but one of need for community care. 27. I am prepared to assume for present purposes that there is a serious question to be tried on whether the defendants have been in breach of their obligations in relation to the assessment of his community needs. However, that is not the end of the matter. The question then becomes whether the balance of convenience lies in favour of making a mandatory order. The difficulty with Mr Buley's argument, as I think he was constrained to accept at least at one stage, is that it is based on the assumption that if the defendants had carried out the obligations which he says they failed to carry out, it would have lead inevitably to the conclusion that the claimant would have got everything that he seeks by way of the draft order. 28. It seems to me that that is unrealistic. There is an argument that he would and should have got CBT psychological treatment, since that was on any view part of the plan of 27 September. On the other hand, Mr Patel says that that is a matter for the doctor to prescribe and is not part of a broader plan. In any event, if this were a clear case in which there was a serious risk of harm either to the claimant or to the public, then the court might be persuaded that the claimant should be placed at the head of the queue for competing claims for services from limited funds, but that is not the position. This is not in any real sense an urgent case. The real complaint is one of failure to put into effect an appropriate care plan. That failure does not mean that the court should conclude that such a care plan would have led to the relief which the claimant seeks. In this case and in the circumstances, both the application of principle and a reasonable view of the facts (as they presently appear), leads to the same conclusion that a mandatory order should not be made. 29. Having said that, in my view, the court should direct that their should be some form of assessment and when I say assessment, I do not intend this to be a statutory assessment or it to be criticised on the basis that there has been a failure to comply with codes of practice. What I have in mind is a short assessment prepared by the mental health social worker, the approved mental health professional employed by the first defendant, Ms Wiafe‑Ababio, in which she would come to various conclusions on the basis of the material now available. That should be a short document. It should be a document drawing together all the information that is now available, so that the matter can be considered on that basis, should the matter proceed to trial. 30. Accordingly the interim application is refused on and I will hear the parties on further directions. 31. MR BULEY: My Lord, can I have a moment to take instructions. I just want to turn to ‑‑ 32. MR JUSTICE SIMON: Yes, of course. 33. MR BULEY: My Lord, I am grateful. My Lord has refused interim relief at least in the terms in which we were seeking it, I think, but made an order for what it seems like, I think I can fairly describe, as a mandatory relief of the kind that ‑‑ 34. MR JUSTICE SIMON: No, it is not intended to be a mandatory relief. 35. MR BULEY: Oh, I see. 36. MR JUSTICE SIMON: It is really in the form ‑‑ 37. MR BULEY: My Lord, a procedural direction. 38. MR JUSTICE SIMON: ‑‑ it is a procedural direction. It seems to me that the matter cannot go ahead with simply ‑‑ I am going to put it in a pejorative way ‑‑ ducking and weaving, and I think the parties know what I mean. At some stage, the parties have to make clear what their case is. You have by reference to Dr Vermoynen. I do not regard defendants having done so. I do not regard it as satisfactory simply for council to get up and say, "A doctor has agreed with my skeleton argument". There must be something more certain and it seem to me that the appropriate person to make a short statement about the present position of the defendants is Ms Wiafe‑Ababio, but if the legal team think that she is not the appropriate person, then somebody else can do it, but what I am looking for is a short summary of the defendant's position at the moment. 39. MR BULEY: Something for the court to look at ‑‑ 40. MR JUSTICE SIMON: Something for the court to look at, but not something for the claimants to criticise on the basis that it is non‑compliant with codes. 41. MR BULEY: No, though of course that would not preclude our argument or wider argument on that basis ‑‑ 42. MR JUSTICE SIMON: No, that will be on a historical basis, not on the basis of what is produced. 43. MR BULEY: My Lord will appreciate that my anxiousness now is about expedition of where we go from now. My Lord has declined mandatory relief on the balance of convenience, but was prepared to accept that we had a serious issue to be tried ‑‑ 44. MR JUSTICE SIMON: Yes. 45. MR BULEY: ‑‑ which I think corresponds to, in effect, a decision that the claim is arguable. I think that is implicit. It must come to much the same thing. I do not very much mind about whether my Lord formally grants permission, but what one will ask my Lord then to do is to set the matter down for a effectively proper hearing, not a short permission hearing ‑‑ 46. MR JUSTICE SIMON: Yes. Shall I ask the defendants what they say about permission first of all. Are you saying that this is not reasonably arguable. 47. MR PATEL: I think I would ask the court to direct a rolled‑up hearing ‑‑ 48. MR JUSTICE SIMON: No, it is so unsatisfactory from the court's point of view. 49. MR PATEL: I will tell you why I ask that, if I may. 50. MR JUSTICE SIMON: Yes, of course. 51. MR PATEL: Your Lordship has rightly said that we should set out our position or our current position. 52. MR JUSTICE SIMON: Yes. 53. MR PATEL: When we get to the hearing, it will be in our submission some slightly by‑the‑by as has happened previously because if in fact an assessment has been done or an assessment has taken place ‑‑ 54. MR JUSTICE SIMON: I think perhaps I am wrong to describe it as an assessment. I think what it may be, because assessment carries with it implications that it had been done under some statutory provision. I think just report. 55. MR PATEL: In which case, it will be just our evidence ‑‑ 56. MR JUSTICE SIMON: Yes, well so be it. Yes, but will be evidence that the other side will see and it will be evidence that is prepared reasonably promptly. 57. MR PATEL: Yes. I think then, in which case, we will (inaudible) provide our evidence as well as our, I think, detailed grounds of defence, as at the next stage. 58. MR JUSTICE SIMON: Right. 59. MR PATEL: And then the claim has come off a hearing, and then there will be skeleton arguments. But that does not preclude, because I think the difficulty in this is that what the local authority is saying, which we support, is that this is an ongoing process of assessment and it may be that having considered Dr Vermoynen's evidence, that the defendants file an assessment which is compatible with the statutory obligations, in which case we then have a ‑‑ 60. MR JUSTICE SIMON: Yes. 61. MR PATEL: We then have a challenge to that, so that what has gone before has gone by the wayside and then the question of permission will have to be whether there are arguable grounds for challenging that decision ‑‑ 62. MR JUSTICE SIMON: I see. 63. MR PATEL: ‑‑ and the defendants' provision of services thereafter. 64. MR JUSTICE SIMON: All right. 65. MR PATEL: So that is why I asked a rolled‑up hearing because I can see the need for expedition and I am not going to argue against that, but I ‑‑ 66. MR JUSTICE SIMON: I do not think there is going to be much expedition in view of the time of the year that we are at. 67. MR PATEL: No, well... 68. MR JUSTICE SIMON: Are you saying it is vacation business? I know you and your client, your professional client's anxiety about this, but at the moment, there does not seem to be a particular problem, unless you can identify one that entitles you to ‑‑ 69. MR BULEY: There was the view of Dr Vermoynen who (inaudible) more urgent need here. One of the things, and my Lord rightly does not focus on it in the judgment, and indeed I asked to be not focused on it in the judgment, but one of the things which is in the background is what the correct assessment is. If the correct assessment is that of Dr Vermoynen, then indeed there may be reliable versions. Since that has not been cited ‑‑ 70. MR JUSTICE SIMON: No. 71. MR BULEY: ‑‑ one cannot assume it is not the position ‑‑ 72. MR JUSTICE SIMON: That cannot be decided ‑‑ 73. MR BULEY: No, no, of course it cannot be decided ‑‑ 74. MR JUSTICE SIMON: It cannot be decided, I would have thought, without calling the doctors and this court is not a convenient forum for doing that. 75. MR BULEY: Yes. I accept that this court's jurisdiction is limited to legality. It will not itself make a substantive decision, but my Lord, what we have is the possibility that the view will be taken out there, whether this court takes a (inaudible), that my client has quite a severe, ongoing current mental health problem and if that is the right view to be taken, then the outcome is urgent and that is why the valid thing to say ‑‑ 76. MR JUSTICE SIMON: In a normal case where there is a dispute between doctors, the court directs that the doctors meet. 77. MR BULEY: Well, I would certainly be delighted for them to meet. My Lord knows that we rather (inaudible) for some sort of involvement of people like Dr Vermoynen and (inaudible). 78. MR JUSTICE SIMON: Yes, I am not going to direct it without the agreement of the defendants. 79. MR BULEY: I can say that we would be delighted. I am not asking my Lord to make a direction ‑‑ 80. MR JUSTICE SIMON: Right, they will have heard you and they may or may not be delighted themselves ‑‑ 81. MR BULEY: Yes, and no doubt (inaudible) can be made at a hearing. 82. MR JUSTICE SIMON: All right ‑‑ 83. MR BULEY: Just coming back to expedition and permission. My Lord has accepted that there is an arguable claim here so far. It is in the ‑‑ 84. MR JUSTICE SIMON: I have, but it is fair to say that the defendants really have not put forward their detailed grounds yet and the matter may develop significantly between now and any hearing. 85. MR BULEY: My Lord, it is in the nature of this kind of case that that is where we are and it is appropriate, once the court has recognised an arguable case, in my submission, to as it were draw a line on whether to grant permission. I accept, and Mr Patel makes a valid point, that things may move on and what the issues are may move ‑‑ 86. MR JUSTICE SIMON: Yes. 87. MR BULEY: ‑‑ but in my submission, the right thing to do ‑‑ it is practical significance ‑‑ it is significance of more symbolic than practical if we are alternatively moving towards the same kind of hearing, but called it a rolled‑up hearing. In my submission, it is appropriate to mark where we are today by (inaudible) that permission is granted so as to recognise that position and that will, among other things, focus the mind of the defendants. 88. MR JUSTICE SIMON: All right. 89. MR BULEY: So permission, I say, has been granted. That is the first condition. Plainly the defendant needs some time to carry out the assessment ‑‑ I use the word loosely ‑‑ the assessment that my Lord is envisaging. The ordinary time for detailed grounds and evidence is 5 weeks. I would say to ask my Lord to abridge that to 3 weeks ‑‑ 90. MR JUSTICE SIMON: For what? For the? 91. MR BULEY: The ordinary time for detailed grounds and evidence, going to the CPR, is 5 weeks, 35 days. I would ask my Lord to abridge that to 21 days, 3 weeks, in my submission. That is really reasonable and realistic. It is only a relatively short (inaudible ‑‑) 92. MR JUSTICE SIMON: All right. 93. MR BULEY: ‑‑ and I would ask my Lord to set the matter down and I would ask my Lord for an urgent hearing by the middle of September, is my suggestion. I would ask my Lord to direct that it be vacation business. That gives sufficient amount of time for the court to accommodate it, one would hope, on the one hand and for the parties to properly prepare, on the other. We can, I am sure, agree some consequential orders about timing of skeletons, if that is necessary. I do not think I need to trouble my Lord about that. 94. MR JUSTICE SIMON: Right. My present view is that permission should be granted. The defendants should have 4 weeks in which to prepare detailed grounds and included within that should be any report. I am going on rephrase that, a report from Ms Wiafe‑Ababio. I am not going to direct that this is vacation business. It seems to me that although the matter has been brought on quickly, it does not fall into that unusual category which should take precedence over other cases, but I will direct that there should be a hearing in the Michaelmas term of this matter. How long will it take? Not a day and half. 95. MR BULEY: Well, if my Lord ‑‑ 96. MR JUSTICE SIMON: How long should it take, is what I should ask. 97. MR BULEY: It should take a day. 98. MR JUSTICE SIMON: Yes. 99. MR BULEY: These things do not work out ‑‑ 100. MR JUSTICE SIMON: No, Mr Buley, I ‑‑ 101. MR BULEY: ‑‑ the judges who have to hear the matter. 102. MR JUSTICE SIMON: I noticed. Any other directions? 103. MR BULEY: Can I just ask my Lord very briefly. I understand why my Lord does not direct that it is vacation business. Can I ask my Lord to direct a point in time in the Michaelmas term, rather than the end, because the end is a long way away, say mid‑October. 104. MR JUSTICE SIMON: I do not think I can commit listing to a day's hearing, but I will say that it should be accommodated as soon within the Michaelmas hearing as is possible. 105. MR BULEY: I am grateful. 106. MR JUSTICE SIMON: Do you want to say anything, Mr Patel? 107. MR PATEL: The only matter I would ask is that costs of the interim relief application should be the defendant's. It has been brought, it has been refused, and that follows? 108. MR JUSTICE SIMON: You make the same submission. 109. MR BULEY: My Lord, I say costs in the case. I mean, this has been a necessary and valuable hearing which has moved the claim along which had languished and in my submission, costs should be costs in the case or costs reserved, but costs in the case is the right order. 110. MR JUSTICE SIMON: I think there has been an element of necessity in bringing the matter forward. I am going to say the claimant should pay half the costs of the costs of the defendant of today. 111. MR BULEY: My Lord, I do not think that is an application made by my learned friend ‑‑ 112. MR JUSTICE SIMON: I thought they asked for all the costs? 113. MR BULEY: He said defendant's costs in the case. 114. MR JUSTICE SIMON: Defendant's costs? 115. MR PATEL: In the same that ‑‑ we asked for the claimant to pay for the defendant's costs of the application. 116. MR JUSTICE SIMON: Yes ‑‑ 117. MR BULEY: Oh, I am sorry, I misheard. 118. MR JUSTICE SIMON: That is what I have ordered. All right, thank you very much. Thank you all for your submissions.
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