R (BA) v LB Hillingdon [2012] EWHC 3050 (Admin), [2012] 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."



Neutral Citation Number: [2012] EWHC 3050 (Admin)




                                                         Royal Courts of Justice


                                                                 London WC2A 2LL

                                                           Tuesday, 26 June 2012

                                  B e f o r e:

                                MR JUSTICE SIMON


                       THE QUEEN ON THE APPLICATION OF BA



                          LONDON BOROUGH OF HILLINGDON


  Computer‑Aided Transcript of the Stenograph Notes of WordWave International

                        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

"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 [2011] 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

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

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

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

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

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.

External link

Possible Bailii link (not there when checked last night, but might have appeared since)